A DIRECTION or Preparative to the study of the Law: Wherein is showed, what things ought to be observed and used of them that are addicted to the study of the Law, and what on the contrary part ought to be eschewed and avoided.  
AT LONDON Printed by Thomas Wight. Anno Domini. 1600.   

❧ The contents of the several Chapters.  

CHapter 1. Of the worthiness and excellency of the Law.  
Chapter 2. Of the good qualities wherewith the student of the Law ought to be furnished.  
Chapter 3. Of the choice which the student of the Law ought to make in his study.  
Chapter 4. Certain rules to be observed of the student in the reading of his books.  
Chapter 5. Of the exercise and conference which the student ought to use.  
Chapter 6. That the understanding of the student ought to be proportionable to the intendment of the Law.  
Chapter 7. That the student ought well to conceive the reason and justice of the Law in distinguishing and establishing the property and community of things.  
Chapter 8. That the words or terms used in books of Law ought to be understood and applied as the Law doth expound and conceive them. Whereunto is annexed a table of certain words, in the interpretation whereof, the Common law of this Realm and the Civil law do seem to agree.  
Chapter 9 What method is to be used in handling & disposing matters of law.    

Lectissimis et generosissimis iwenibus in hospitijs curialibus connutritijs, & Juris Anglicani studio operam navantibus assiduam. S.  
SI Theophrastum, ut ipsum nomen indicat, oratione divinum, circumscripta quaedam spatia, & angusti umbraculorum circuli á frequenti auditorum corona, & publico judicum consessu detinuere: Si Socrates, quem sapientissimum virum, Apollo sapientissimus Ethnicorum Daemon iudicavit, nihilo plura volumina edidit, quam condidit, id est, nulla: mihi quidem generosissimi iwenes, non solùm in scribendi initijs, sed in umbilico etiam & crure valdé metuendum est, ne prima medijs, media ultimis, omnia omnibus, non apposite respondeant: Quae enim parcè nimìs traduntur desiderium, quae prolixè fastidium pariunt, et medium quaesitum invenire difficile, inventum tenere difficillimum: Cum hanc arduam sanè provinciam primò ingressus fueram, istud me recreavit & sustentavit solatium. Qui curas suscipiunt graviores si mansuetis ingenijs uti volunt judicibus, eorum audere, est agere, velle est posse, velitari est vincere. Fateor in aliquibus tenùs, ultrà, plus ultrà perventum esse: Sed vel metam ipsam attingere, imò verò ad eam contendere, sudoris est et virtutis: Quanquam hoc A Euo, in hoc praesertìm Britanniae Elysio, nihil in delitijs habetur praeter meras orationis illecebras: mira certè quae placeant, vermiculata verba, nectareas phrases, eloquentiam Atticam exposcunt, omnia limata, arguta, sententiosa esse volunt, planè Aristippéi sunt singuli prauè sectum stomachantur ob unguem. Quarè seria & submissa prece, mihi vehementér obsecrandi estis insignissimi iwenes, ut hic potius otij mei foetus quám laboris fructus (vacatio enim haec proxima quám sub aequinoctium autumnale Londini non admodùm invitus egi, cum ad privata studia et negotia multum superesset temporis, hanc vobis prolem peperit) sub candoris vestri radijs calorem et vires recipiat: cuius si compos fuerit, debebit ille quidem vigorem suum vobis, lucis usuram mihi, fortunam mundo. valet: Ex hospitio Graiano: pridie Nonas Septemb. An. salutis humanae. 1599  
Vobis addictissimus Guilielmus Fulbeckus.   

Faults escaped in the printing of the Table of words annexed to the eight Chapter, may be thus amended.  


Fol. 74. b for Index read judex  
fol. 75. a for Debito read Debtor  
ibidem. for mixed read mixtae  
fol. 76. a for Doto read Dolo  
ibidem. b for Fidenistor read Fideiussor  
fol. 77. a for fato read salo  
fol. 78. b for Maritinum read Maritimum  
fol. 80. b for contumately read continuately  
fol. 81. a for vacillaus read vacillans.    
The other faults escaped in the printing of the other Chapters, a courteous eye and understanding may easily reform.   

OF THE Worthiness and excellency of the Law.  

The first Chapter.  
AS nothing more encourageth the soldior to fight, and to give forth apparent signs of valour, than the glory & renown which is gained by exploits of war: so nothing is a greater spur to the student of any Art or Science, than the just reward of fame and commendation, which belongeth to those, who by labour attain to perfection in any praiseworthy science. For as nature rewardeth the Bee with honey, so Art recompenseth the painful student with riches, praise or honour. And howbeit some men make small account of praise or good report, as being in their own conceit but an empty sound, yet wise men have thought & written, that a good name is better than Gold, 
aa Proverb. 2● Aym. cons. 145 viso proces●● in fi.  and that a man's credit is the fairest flower of his garden. Now if praise be due to Arts and sciences, as being the best treasure & endowment of the mind, religion only excepted, then surely the knowledge of the law may in the first place challenge prerogative of dignity, by whose righteous doom & decree it is provided, ruled, & ordered, that all other sciences should have their maintenance & support, in such plentiful & condign manner, as by merit or equity doth to them of right aptaine. But every art receiveth his commendation by the end & scope which it proposeth to itself. And the chief end or last mark of the law aswell as other sciences is God his glory. But the next & immediate end, which is allotted to it, is to administer justice to all, & in that sense it may be called the rule of justice: For religion, justice, and law do stand together, & are together trodden under foot by such as neither care for God, nor goodness: such as are rehearsed by one of notable judgement. 
a Cyprian de 12. abusio.  A wise man without works, an old man without devotion, a young man without obedience, a rich man without alms; a woman without chastity, a gentleman without virtue, a contentious christian, a proud beggar, an unjust king, a negligent Bishop, a congregation without discipline, a nation without law. But justice is then rightly administered, when it is not sold, 
b Can. venden. q. 3. Canon pauper 11. q. 3.  When there is no respect of persons. 
c Deuteron. 1  When hatred is away & conscience is present. 
d Can. sex. 23. q. 3.  When rigour is tempered with mercy. 
e Can. omnis & sequ. can. discipli. 45. dist.  And justice must be regarded of the law as the load-star is minded of the Seaman, for without it can be no government. another end of the law is the good estate of the people. For it is an Aphorism amongst the laws of the 12. tables: Salus populi suprema lex esto: Let the safety of the people be accounted the chief law. 
f l. 12. tabula●. c. 6.  And the deserveth not the name of a law which hath no relation to public profit. 
g Cicer. 2. de legi.  For Hermogenes said well that every law was made for the good & profit of men. 
h lib. 2. de sta● homium.  And Plato saith, that a Lawmaker ought to have regard of 3. things especially: namely, that the convenient liberty of the common weal may not be impeached by the laws, that they may preserve amity amongst the people, & that they may furnish them with wisdom. 
i lib. 2. de legi.  Wherefore they that despise laws, have no care of common profit, 
k Cicae. pro Caecin.  because they were made for common use, 
l lib. 2. de legi.  & without law, which I interpret to be an order established by authority, neither house, nor city, nor nation, nor mankind, nor nature, nor world can be. 
m Cicer. lib. 3. de legi.  And therefore Cicero saith, that our ancestors were of such virtue & wisdom, that in making of their laws they had no regard, but of public good: 
n Cicer. lib. 〈◊〉 de invent.  For they would not write any thing to hurt, and if they had written any such things, it would have been rejected as soon as it had been understood. It is manifest therefore that the end at which the Law doth aim is the general advantage of common society in a just manner distributed and dealt to every one. For, non sufficit bonum fieri nisi bene fiat, It is not sufficient to do that which is good unless it be done in good sort, and therefore let not any man, which undertaketh this profession lay conscience aside: for though the charge and calling be secular, yet it must be religiously handled. For God is the author of the Law, and the revenger of the abuse thereof, The weight and measure, 
Pro. 16.  saith Solomon, are God his judgements, and therefore if any man maintain any wrong by colour or pretence of Law let him know, that though man be hurt, yet God is offended, ye do not execute the judgement of Man, 
Chroni. 2. c. 19  but of God, saith josaphat. God is the beholder and umpire of Counsels and judgements, and surely if a man do well discharge this weighty and excellent function, there is no man of any religious habit or vocation in higher place or greater reckoning with God. So much the more are they to be reproved, who exercise sychophancie, fraud & caviling in the handling of causes, being wresters of Laws, and wringers of money, whose conquest in bad causes maketh them triumph as much as Romulus did when he had killed his brother: nay as Atreus did when he had compassed the death of his brother Thyestes, boasting and glorying. 
o Senec in Thy.  nunc parta vera est palma, nunc meas laudo manus, Now have I gotten an honourable victory, now I praise my handy work, but they in whom conscience beareth stroke are far otherwise addicted, and shallbe hereafter otherwise rewarded. Nay even in their life time do they possess the ensigns of authority & dignity, & by good right may they challenge many special favours, immunities & indulgences. Constantine the Emperor gave to the professors of the imperial Laws, full & perfect freedom from all collateral charges, taxes, and other burdens of the common weal, 
p L. medic. 1. 6 de profess. & medi.  and he decreed also that certain yearly pensions should be paid unto them out of the Treasury, 
q D. L. medicos.  & the Emperor Valent. would have them which by the space of xx. years were professors of the law, to be illustrated by the name of Comites, a name of excellent dignity. 
r l. unica & rubri. de profess. qui in urbe Constantinopol. docent ex lege meruerunt. Comit. li. 12. c. tit. 15.  Many other privileges & benefits are mentioned in the Civil law, which belong as well to Studients as to professors, and hereupon had that saying his original.  
Dat Galenus opes, dat sanctio justiniana:  
Ex aliis paleas, ex istis collige grana. 
s Angel. Aretin in §. proaem. institut.   
Neither hath England been unkind or straight handed to men of that coat and calling: for in old time as I find in M. Plowden, who was credibly informed thereof, there were four Reporters of the cases of Law, which were chosen men, and had a yearly stipend for their pains and travail therein, paid by the king, 
t Ploughed. in Epi. a les estudents de le common ley.  But some will say that God forbiddeth us to contend. Who denieth that? but he doth not forbid to judge & determine controversies: & there is great difference between judging and contending: for though God do forbid thee to beat a poor traveling man: yet he doth not forbid thee to bind up his wound, when he is hurt and maimed of others. So though he do greatly abhor the hatred, rancour, malice, and disagreement of men, yet he is well pleased and contented that such pernicious & contagious diseases should be cured. Let him that condemneth the fault, approve the remedy. One man rageth with a burning desire of revenge: an other conveyeth to himself an others man's goods by craft, whom when charity & duty cannot bring into the right way, his disloial dealing must be repressed by the severity of judges. Moses, David Solomon, committed no sin, when they caused wicked men to be rigorously punished: & though Christ do condemn a quarrellous & revengeful person, yet he leaveth to the judges their authority, whether they rule & order causes by the Laws & customs of nations, or by the law of Moses. joseph, Daniel, Naaman, the Centurion, did govern common weals by the laws of the heathen. Surely the politic laws of Kings & Magistrates are greatly to be heeded & regarded, which Christ himself allowed, when he paid tribute to Caesar. And the profession & practice of the knowledge of law is warranted by the example of great men, who would not have borne the names of professors, if the science had not contained in it singular wit, excellent wisdom, & profitable directions for the whole course of man's life. It is well known that the Camilli, the Curij, the Fabritij, the Fabiuses, the Claudij, the Scipios, the Crassis, the julij the Cicero's, & the Scaevolaes' were singular men and singularly skilled in law. And to give them their proper appellation were lawyers. These men governed their common weals not in the shadow, in darkness or corners, as the Grecians did, but in the clear light of the Sun, and in the face of the world, using experience as a Pilot against the boisterous & turbulent affections of the people. And therefore Virgil when he distributeth 
v Vir. Aeneid. 6.  several sciences to several Countries, appropriateth the science of governing common weals to the romans.  
Tu regere imperiopopulos Roman memento,  
Parcere subject is & debellare superbos.  
Mind thou O Roman men by law to guide,  
To spare the meek, and overmaster pride.  
But some account it a matter of too great curiosity, that the laws which should be plain & manifest to all should be reduced to an art obscured with difficult cases, shadowed with conceited terms, and as it were, covered with clouds, and wrapped in darkness: to whom I answer that it is very expedient, that there should be a certain art and science of the Law, general rules & precepts, and convenient discourses. For the particular things which do fall under the observation of law are infinite, & the weakness of man's memory cannot tolerate the multitude of particular laws: and therefore it is convenient that that which we call aequum bonum, which in plain terms is nothing else but perfect reason, should be comprehended and delivered in certain general precepts, and Plato allegeth this for a reason 
x Plat. in polit.  because it is necessary, that there should be Regia disciplina a princely science, for he suiteth it with that name, which may by a general censure, order and dispose of all things without regard of every particular circumstance. For the certain knowledge of matters, it is good that the law should be bounded by certain rules & limits: For a man could not certainly know what were his own, and what an other man's, unless the Law should as it were by finger point, & show unto him, what, when, and how it were his, and therefore true is that saying of Cicero, 
a Cicer. lib. 9 Epist. famil.  Omnia incerta sunt cum a iure discessum est. If you depart from Law there is no certain state of any thing. And his opinion is in an other place, 
b Cicer. in ora. pro Caecin.  that our inheritance rather cometh to us by the law, then by our ancestors: for though they do give is, or leave it unto us, yet it is the law which doth settle it in us, and doth preserve the possession thereof free and inviolate unto us. Wherefore it is to good purpose, that the Law should be definite in itself, and should consist of certain conclusions which should be as the lists and periods of the science, by the contemplation of which, a man may be instructed and sufficiently furnished for particular causes and events: For the particular case lieth as it were emboweled, and is implicatively contained in the general learning, and there is nothing in the Law which may not be reduced unto some universal theorem, which may easily be conceived and remembered, because it is general. 
c Marcell. 2. ff. de iur. et fact. ignor.  And though the professors of the Law do make-particuler arguments of special causes, and do admire examples or cases to the illustrating of that which they do principally handle, yet the Law itself is comprised within certain rules. Neither ought it to trouble us, that the Law books are so huge, & large, and that there is such an ocean of reports, and such a perplexed confusion of opinions, because the science itself is short and easy to one that is diligent, according to that saying: Industriae omnia serva fiunt, All things are servants to diligence, or come at her command, and arts are not to be esteemed by the greatness or smallness of the books, but by the goodness of their rules. And though the laws which do vind men's lives & manners ought to be understood of all, that their prescript being known, men may decline from that which is for bidden, & follow that which is commanded: yet that may be done either by their own means, or by the means of others: & if a man's brain be no fit mould for the Law, let an other man's mouth be his teacher. Hence cometh the name of Counsellor, because in doubtful causes he may resolve & give counsel: Whereby appeareth aswell the necessity, as the excellent use of the calling: for what can be more convenient or of better opportunity, then that a man of experience should show the way to one that is ignorant. It is therefore expedient that there should be laws written, & that such laws should not be altered without urgent occasion: for it is a fond part to strive against the course & stream of laws, & customs received. A great question it hath been heretofore, whether common weals were better governed by written Laws, or by the present & voluntary conceit of the Magistrate: This matter, because religion itself hath committed civil duties to the wisdom and ordering of man, aught to be measured by the examples of wise governors & by popular sense. What good common weal hath there ever been without written Laws, which have been used by the Egyptians, Cretensians, Athenians, Romans, & jews. The writing or the engraving of laws in Tables is a principal cause of the certainty of the same, & without certainty, it should be of small credit: for what authority or force should it have, if it did always change like the Moon, or like Vertumnus: but when causes are decided by the opinion & will of the Magistrate, the power of government may be in the hands of such as be unskilful, or wicked, & so either for want of skill, or conscience, justice may fail of her course. How often might the pretence & show of justice beguile us? how often might justice be perverted by favour or malice? But if Laws were not general, & should not sometimes restrain Magistrates & governors, great inconvenience would ensue: even as great as happened in Athens by the violent domination of the 30. tyrants, who when they had canceled & disadnulled the Laws, did exercise a common butchery and slaughter of good men: Wherefore, as in dangerous tempests the ship is not rashly committed to the winds: but there is need of a skilful Pilot by cunning & carefulness to govern: so the wavering & passionate mind of the Magistrate, must be ballassed and weighed down by Law, lest his own private affections do drive him from doing justice as from the haven. Aristotle affirmeth, that God ruleth that common weal which is governed by a written Law, because the Laws are the champions and defenders of convenient liberty, than which there is nothing more pleasant in this life: for what thing can be more happy, then to be free from the fear of injury, & safely to enjoy the society of men, and therefore he would not have the government of the common weal to be committed to any one man, though very virtuous, without the regiment and direction of Laws. Neither let any man say, that I do sinisterly judge of the natures & dispositions of men, in that I account no man of so approved and special virtue, and fidelity, that the managing of common affairs may be offered unto him to order them at his will and pleasure without the appointment & warrant of laws: surely I could wish that every governor were a Numa: But yet I would have the law to be joined with the Magistrate in the act of government. Neither do I fancy or figure in my mind any happier common weal, than such as may accord with the tenor and progress of humane affairs. If a man should imagine that the authority of government were in the hands of the stoics, such as would neither be moved by hatre, nor favour, though they in other respects were very unfit to govern, how shall their humours be satisfied, who had rather be governed by written laws, then by upright Magistrates? for such is the madness and frowardness of some, that they will not be contented with the equity and faithful dealing of the judges, but will still contend by the rigour, and dint of law, and will try all extremity, being often times more at jars & at odds with the judges, then with the adverse party: here the authority of judges will be weak, unless the laws publicly received do strengthen it: so that in the written laws there is not only a safeguard for innocency against injury, but also for the Magistrate against the importunity of the people: But as wayfaring men whilst they travail are not afraid of going a stray, when Mercury's image doth point out unto them the way that they are to go: so good men when a certain law is proposed unto them, when by it they know what every man ought to perform, what to avoid, they are secured and do wholly repose themselves in the protection of laws. To the intent that the Hebrews might well agree, & have good order amongst them selves, God did enact and establish certain laws, that they might judge by prescript, and rule, lest the law being ambiguous might procure dissensions. And other people and nations have either by the tyrannons' domination of Magistrates, or the outrageous discord of the people been enforced to receive Laws as the square and measure of their actions. In the City of Athens when there was continual debate about the difficult points of the law then in force, there arose three factions of men, not of the worst sort, but yet not well agreeing in matters of state: the City by this mean being greatly molested, and the hearts of men being edged & exasperated by the festered sore and cankerworm of contention, the government was committed to Solon: he surveying by depth of judgement the weak, and impuissant estate of the City, made Laws, whereby peace and contentment were restored: And when he saw, that these Laws were the sinews of the good estate of the city, he determined that whosoever should hold any judicial place, should in precise terms take oath that he would judge according to the Laws. This was also the cause why the Romans did fly to a written law: the Magistrates did arrogate & assume too much to themselves, the people did exceedingly grudge and murmur that their honest liberty was impeached by the manner of their ruling, and the best men were at variance in matters of Law: so that it was thought meet that some equal Laws should be in force, whereby the rashness of the people, & the violence of the Magistrates might be moderated: For this cause the Laws called the Twelve tables were prescribed to the City, which yoke was willingly received, because without laws they knew their common weal could not prosper, nor continue. And as there ought to be a certain form of Laws, so these laws ought not to be altered or abrogated without great occasion, & the evident advantage of the common weal. There was a Law amongst them of Locros, that whosoever would make a motion or invective against any received law, should thereof deliver his mind, having an halter about his neck, & if it were agreed by the assembly, that the thing which he endeavoured to persuade were for the good of the common weal, the man was safe, & received commendation: but if it were disallowed, and rejected as an unprofitable admonition, he was straight way hanged and received death as the guerdon of his innovation. And in Athens there were a kind of men called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, who in all public meetings did sit amongst the chief Magistrates, & did put them in mind not to decree any thing against the Laws in force. Thus it is evident that both the making & maintaining of laws is necessary. And it is rightly said of Cicero, that the Law is as necessary for the government of a state, as the soul & mind is for the preservation of the body, 
d in orat. pro Cluentio.  this (saith he) is the bond of all dignities, and degrees, which are in the common weal, this is the foundation of liberty, the fountain of equity. The will, counsel, & decree of the City is contained in the laws, as the body can do nothing without the soul: so a city without Law cannot use her actions, power, or authority. The Magistrates are the ministers of Laws, the judges are interpreters, the people are the Servants, that they may have true liberty. The Law is thus defined by Cicero, 
e 3. lib. 1. de legi.  Summa ratio insita á natura, quae iubeat ea quae facienda sunt, prohibeatque contraria, A principal reason engrafted in us by nature, which commandeth the things that are to be done, and forbiddeth the contrary, and all the particular and several laws of divers nations, are but the branches of this law: for the laws be certain and clear intelligences, and rules, whereby the mind is addressed to pursue that which is good, and to eschew the contrary: and they offer to the mind the forms and Ideas of virtue and dishonesty. So that in the sacred precepts of law, as in a crystal glass, a man may perceive what he may do with praise, what he cannot do without infamy: for the common places, which be handled by divers, of common duties, of that which is truly good, of that which is perfect happiness, of the best estate of a common weal, do not so sufficiently qualify and instruct the understanding, as the law itself. But here I shallbe crossed by an other objection, that great & tedious are the labours which are to be sustained in the study of the law. Surely there is nothing of weight or worth, which may be compassed without pain & travail, and yet if the pain be compared and balanced with the profit, it is but as a few drops of hail to a whole shower of Manna. What would not a towardly man do? what would he not undertake by his wisdom & wariness, to keep all danger from the bodies, heads, and lives of the innocent: to preserve his memory from oblivion, and silence: to be of great account amongst the greatest: to attain to that knowledge, which is the highest of all human arts and sciences? and though it were as hard a matter for a young gentleman to gain the knowledge of the law, as it was for Phaeton to ascend unto the Chariot of the Sun, who ere he could accomplish that, was to pass through uncouth ways, and by the ghastly forms of deformed creatures, by the terrible Signs of the Bull, the Lion, and the Scorpion 
f Quid. Metamorph. , though (I say) a Student ought to have all the law perfect, and to pass through a multitude of cases, judgements, Statutes, arguments, treatises, comments, questions, diversities, expositions, customs of courts, plead, moots, readings, and such like: yet sith there is no art nor science, by which the common weal receiveth so great benefit: sith there is no course of life, no time of age, no estate of men, which can either flourish or be without the safeguard of laws, and sith the difficulty of the science is rewarded by the dignity, credit, and ample fortune which belongeth unto it: the hope of them which employ themselves in this study ought not to wax faint, nor their minds to be daunted with the labour and pain, which all arts require: but they ought to be incited and alured to proceed in their studies by the excellent and honourable rewards of the same.   

Of the good qualities wherewith the Student of the law ought to be furnished.  
The second Chapter.  
BEcause many apply themselves to the study of the law, without deliberate consideration of their qualities and sufficiency, so that many times they find not that contentment, which otherwise they might enjoy. It is very convenient that they should know what qualities are requisite in him, who is to employ his time in the study of the law: for as Aristotle sayeth, 
a Aristot. lib. 10. Ethico●, ad Nicomach.  Rules and precepts have not force in all, but the mind is to be decked with good gifts, that it may take joy in things that be truly good, and abhor the contrary. The first and chief thing that I do require in him, is, to have the true knowledge, and fear of God, without which his other knowledge is but as a sword in the hand of a frantic person: and where the light of truth is not, there is a dark and tenne-folde mayst about the mind. But where God is not, there is no truth, there is no light, there is no law. The soul and senses, are but the instruments of his will, which he bindeth and looseth at his pleasure. And if they turn from beholding him to the contemplation of any art and science whatsoever, surely they effect nothing but their own destruction. I know this is no pleasant sound to some dainty ears, who cannot tolerate any naming or mentioning of religion, which the Pagans, whom they make as precedents of their profane manners did not only regard, but in the very front and beginning of their laws (such was their reverence) they prefixed a precept and caveat for the observation and keeping of holy rites in a regardful manner: Ad divos adeunto caste, pietatem adhibento: qui secus faxit, deus ipse vindex erit: Let them go to the worship of God with a chaste mind: let them use reverence: God will be the revenger of him that doth otherwise.. 
b Leg. 12. tabular. c. 1.  Some perhaps had rather hear a curious discourse handled by some ginger, whereby they might have certain notice and understanding what complexion and constellation is most fit to enter into the study of the law: with such dregs they would have their mind satisfied. They perhaps, will believe (for what is more credulous than fancy) that they which are borne under jupiter, are not fit for the study of the law, as Cocles teacheth them, 
c Cocles in Physiognom.  that they which are borne under Mercury, are of quick conceit, but quickly unconceited, soon ripe and soon rotten, especially if Mars be joined with Mercury in the constellation, as it happened according to the suggestion of some in Hermogenes the Sophist, who writ of Sophistry in his youth like a grave old man, and was in his old age as a trifling boy. But they which are borne under Saturn, are said to be more dull in the beginning, but in process of time of more sound and deep knowledge then others: surely I am not of opinion, that the soul and the powers thereof are subject to the sway and motion of the planets. If I should think, that it were a substance flowing from the body, or so mingled with it, that it might be accounted a kind of blood, as some Philosophers grossly conceived, this might seem unto me probable.. 
d Cicer. in Tusc. quest.  But I am fully and immovably persuaded, that the soul cometh from above into this strange matter, whereof the body is compacted, and is of an incorporeal nature, which is not subject to the impression of the senses. For when sickness affecteth the body, the soul is sound: and when the body is racked, the mind is free. Neither is it to be marveled at, that it conformeth not itself to the change of the body, because some material parts of the body are not alway partakers of the change. Let a man go abroad in the most cold and freezing weather, yet his eyes will never be frozen, let him stand by a most scorching fire, yet they will never feel heat. The strange and different substance of them from the other parts of the body, I take to be the cause. Now the Planets do work only upon corporal things, for their influence is of the same sort as the attractive force of the Adamant, or the Geate, which cannot work but upon material things: and therefore I may well conclude, that the Stars do not qualify the mind, but the body only, which being a cottage of clay, must needs bear the wind and weather, the alteration and impression of the Planets. Wherefore let not any man who aimeth at the knowledge of the law as the mark of his desire, make any estimation of these Physognomicall fictions: let him not go to the house of Mars nor to the sphere of Mercury for knowledge. Si quis indiget sapientia, postulet a domino: If any lack wisdom, let him request it at the hands of God 
e jacob. c. 1.   
He must likewise observe, that the way to the height of knowledge is by humilities gate. Let not the increase of his skill make his mind to increase, and swell, after the manner of lofty spirited men, who when they know nothing, yet would seem not to be ignorant of any thing. Every auditor must be willing to hear Oportet discentem credere, saith Aristotle, 
f In Analytic. posterior. , who though he were a man of singular knowledge, yet gave example of great modesty, by this censure, Maxima pars eorum quae scimus est minima eorum quae ignoramus, The greatest part of the things which we know, will countervail but the least part of the things which we know not: as if a man should compare one hundred to one. But none do more boast of knowledge, than the ignorant, as nothing soundeth more than empty vessels: and they nourishing in their minds a haughty and ample opinion of their supposed ability, are so bewitched with self-love, that they think they sucked eloquence with their nurse's milk, that the bees which are feigned to sit upon Plato's lips, did fly to their lips whilst that they were dreaming in the cradle: that they were able to teach old men before they had teeth: and triumphing in this conceit, they admire themselves, & disdain others, advancing their own doings, & discommending the fruitful labours of other men, like apes, loving their deformed children, and like fantastic Pygmaleons' wo●ing their own devices. If any thing be spoken of them sometimes clerkly, and acutely as they think, they make an inward applause unto themselves, & cherish their hearts with this acclamation, facete! lante! lepide! nihil supra! but if any thing be spoken of others aptly and sensibly, they straightway infer, Quanto tu melius hoc invenisses Thraso! But a discreet & advised man, will judge none to be so mean, but that he may learn something of him: for though he know more than others, yet he must think, that others know somewhat which he knoweth not. The best and the most grave man saith Cicero, will confess, that he is ignorant of many things.. 
f Cicer. Tuscula. 3.  And Solon was not ashamed to say, that in his old age he was a learner. 
g Cicer. in Catone maior.  And julianus the Lawyer said, that though he had one foot in the grave, yet he would have an other in the school.. 
h Lapud julianum de fide commissis liberal. in p.  The next thing I require in a Student is temperance, which I do not take so strictly as Aristotle doth, who defineth it to be a restraint from corporal pleasures, which are objected to the sense of feeling 
p Aristoteles lib. Nicoma chior. 2. & 3. & in lib. magnor. morali. , but would have it so largely understood as Plato 
q Plat. in Conuivi. , Cicero 
r Cicer. lib. 1. officior. , and now of late time 
s Scalig. lib. 3. poetic. Alberic. Gentil. lib. de leg. 3. c. 13.  Scaliger, and D. Gentilis have taken it to be, a restraint of the mind from all voluptuousness and lust, as namely from covetuosnes, excess of diet, wantonness, and all other unlawful delights. A Student must in his diet be temperate, and abstinent, for as Musonius saith, Continency in diet is the step to wisdom. 
t Stobaeus de temperantia.  A fat and full belly yieldeth nothing to a man but gross spirits, by which the sharp edge of the mind is dulled and refracted, and too much meat cast into the stomach doth engender nothing but crudity and diseases. This measure must be used in our diet, that no more be taken then will suffice. Seneca prescribeth a good rule, 
u Senec. epistol. 111.  Famem fames finiat, Let hunger end hunger, which is nothing else in plain terms, but that a man should rise with an appetite, being rather satisfied then filled. Yet he that feedeth more plenteously, is not to be reproved, if his body do stand in need of more copious nourishment, and a man must not so abstain, that the functions and duties of the mind and body be hindered. Good and moderate nourishment doth quicken the spirits, and they do give strength to the brain, but that which is unwholesome and immoderate doth stop, thicken, confound, and destroy them. As in diet, so in other things, it is good for a Student to have the rule and mastery of his mind and appetite, neither so to let slip the reigns to his desire, that he will for any commodious respect, bring himself to shame and obloquy, and for a present advantage, incur a perpetual discredit. Plato hath a sentence worthy of observation 
x Plato in Timae. , Et dicere & facere ea quae decent ad sobrium & prudentem hominem tantum pertinet, To say and to do the things that are comely, belongeth only to a sober and wise man. That example of rudeness used by certain Florentine Ambassadors, is to be avoided. iovius reporteth it 
y iovi. lib. 28.  They were sent as Ambassadors to Charles the fifth, and Pope Clement the seventh staying at Bonomia, and being Macthants, carried with them (such was their extreme covetousness) certain wares to make gain of, thinking they should be free from custom, as going under the name of Ambassadors necessaries. But this being perceived to the two great Estates, moved the Emperor to laughter, and the Pope to anger, who was a citizen of Florence. The Legates departed with infamy, which they well deserved for abusing so honourable a calling by such base indignity, which may be a warning to all to prefer their credit before their greedy desires.  
Diligence in the pursuing of any study is of great weight and moment, and in the study of the Law it hath principal force and effect, for the cases are many in number, which must be read, remembered, and applied, which cannot be compassed but by extreme diligence. And whereas some pretending a lumpish idleness, would have the Law measured with narrow limits, and would have the multitude of volumes, cases, rules, and diversities abridged and made less, surely they give large testimony of their great desire of ease. But ease is a very bad medicine for difficulty, and their pretence is wholly repugnant to reason, yea to possibility. They that would have few laws, must procure that there be few causes, and little business, which it is not possible for any to bring to pass. If it were possible for these faint students to take away the infinite and the innumerable affairs and actions of men, then that which they require might sort to good effect. But that lieth not in their power, and therefore they should surcease their sluggish surmise. For this cause Ludovicus Vives is justly reprehended of Albericus Gentilis, in that he held, that all things might be finished by few laws, whom Gentilis 
a Albericus Gentilis dialogo primo de juris interpretibus.  affirmeth, to fight against common experience. For if many contentions or controversies should happen, which none can bridle or prevent, if the law should not handle, discuss, and determine them all, the law should do injury, and it should not be the handmaid of justice, it should not Suum cuique tribuere. So that in the Students mind this resolution must be fixed, not to sink under the burden, but with all convenient industry to follow his Study, never to be weary of pains, nor to slacken his endeavour, sith nothing of price and account is purchased without great labour, by which he may attain to the knowledge of many excellent things more worthy of admiration, than praise. Neither is it seemly to pretend weakness of body, and tenderness of complexion, when health and strength do well serve, and may well be employed in Study. Cicero's body was neither of iron, nor of oak, yet he was not broken, nor in manner altered by continual night-watching, noone-sitting, and morning-rising, by many labours, contemplations, and studies, by the great charge of his household, by the weighty care of the commonweal, by writing many books, and epistles without number, as Cardanus well observeth.. 
b Lib. 4. de sanitate tuend. c. 16.  and why should any man despair to do that which another hath done, especially having the like disposition of mind, the like faculties and means to attain to knowledge, and the like desire. This diligence doth chiefly show itself in reading and hearing. It is not fit for him that heareth or readeth, to have a mind wavering from the purpose, and as it were going on pilgrimage. A man is then said to float in fancy, and to wander in thought, when he doth not bend his mind to that which is handled, and when he is amongst his books in body, but not in mind, or when he is present at some reading, and doth not show himself attentive, but doth number the tiles of the house, or buildeth in the air, or doth nothing less than that which he should do: but the force of the mind must bend itself to that thing only which is to be conceived. For the power of our mind and understanding is more strong when it is united, then when it is dispersed, and distracted into many parts.  Pluribus intentus minor est ad singula sensus. 
But as these things forenamed are of great consequence and value to the Student, so wisdom that rare and excellent virtue of the mind is of great importance, which I do rather exact, then require in a Student, for without it nothing can be done decently or perfectly: and surely to a Student of the law it doth specially appertain, for it doth consist in the cunning discerning of the truth of every thing. 
c Cicer. Offic. lib. 1.  And a Student ought not only well to deliver things conceived, but well to judge of them, and in this part standeth the best part of a Lawyer. It is the property of a wise man most sharply to perceive what is true, what is false in every cause and controversy, not to be deceived nor inveigled, not to be unconstant in opinion, nor ignorant in the circumstances of things. The ordinary mean to attain to wisdom, is to use time and diligence sufficient for the consideration of things, to hear reasons on both sides contending in his mind as it were armed and professed enemies, not to judge of any thing rashly or hastily, nor to give a sleight censure of weighty matters. For as Fabius saith in Lyvye 
d Livius lib. 22.  Omnia non properanti clara certaque fiunt, festinatio improvida ac caeca est, All things are plain and certain to him that is not rash nor heady. Haste is improvident, and blind, which is therefore rightly termed of Plato Noverca Scientiae, The stepdame of knowledge.. 
e Plato in politic.  And the Aetolian Magistrate said well, 
ee Livius lib. 31.  That there is nothing so great an enemy to good advise, as haste, which bringeth penance swiiftly, but warning too late, and without profit, because counsel hastily given cannot be revoked, neither can the thing which is disordered by bad advise, be entirely restored or brought into order again. But where a man taketh time sufficient, he cannot be said to do any thing rashly. Wherefore not unfitly hath it been defined by some to be the knowledge of the oportunitte of doing things aright, and the cause that all things be well done, 
f Diogen. Laer. in vit. Platonis. Cicer. lib. 1. officior. , and it hath not only a stroke in worldly affairs, but even in matters of religion: for by it a man may be so directed, that he may neither decline to superstition, nor to that which is contrary unto it, namely, impiety or atheism. And it is the leavill or compass of all other virtues in the accidents and affairs of this life. It will show the times and measure of boldness and audacity, lest it turn to rashness and impudency. It will so order Temperance the mother of order, that it may not be accounted rudeness or incivility. It will guide justice which governeth all things, lest it turn to cruelty: nay it will moderate itself, lest it be termed craft or deceit. By these effects the Student may easily perceive, how necessary it will be unto him.  
The qualities above mentioned, do so directly respect a Student, that they may be numbered in the rank either of adiuments, or ornaments. One thing yet remaineth, which is, to be placed and ranged amongst the ornaments only, being a mere ornament, yet it doth as much adorn, as the other do help: and that is courtesy or mildness, which doth as much deck and illustrate any gentleman, as the diamond doth the gold to which it is fastened, or as the chain of the neck doth give a lustre to the bravery of the other parts, it setteth in order, garnisheth and graceth the other gifts of the mind, without which they should be unsavoury, and want applause. I distinguish it from Civilitye called Vrbanitas, and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, for that is only to be seen in public meetings and assemblies, but this may show itself within a man's private walls, or chamber, and may be used betwixt man and man. Most loathsome and deformed are the manners of the stoics, who whilst in sowernes of mind they seek to overcome man's nature, do exceed it, and of men they become beasts. And such manners have disgraced men of excellent ability. Coriolanus was by nature a Stoic, and his roughness of manners is justly & worthily reproved of Dionys. Halicarnastaus 
g Dionys. Halicarnast. lib. 8.  Cato was both by nature and profession, whom for his bitter austerity Erasmus condemneth 
h Erasmus in Encom. mo●ae. . And surely I think that such rugged behaviour doth relish harshly, and is sometimes unpleasant to them who by natural inclination do favour it. Hear therefore a Stoic dispraising a Stoic. Cu. Piso (saith Seneca) fuit a multis vitijs integer, sed praws, & cui placebat pro constantia rigour 
i Senec. lib. 1. de ira.  Cu. Piso was free from many faults, but yet a froward man, and was delighted with stiffness of mind in stead of constancy. Florus hath noted the currishness of Romulus with a perpetual blot of infamy, Romulus ob asperitatem morum a Senatu discerptus est 
k Flor. lib. 1. histor. . Romulus for the roughness of his manners was torn in pieces of the Senate. But mildness is of that sweet and delectable nature, that it pierceth the stony hearts of barbarous people, it affecteth their eyes and ears, it bendeth the most stubborn and insolent spirits, it findeth an easy way amongst swords, it overcometh wrath, and allayeth hatred.. 
l Valeri. Maxi. lib. 5. c. 1.  This I commend to the student as a principal mean to gain favour, love, and good entreaty.   

Of the choice which a student of the Law ought to make in his study.  
The third Chapter.  
Now that we have showed what qualities are convenient for him, who purposeth to gain knowledge and credit by the study of the Law, it remaineth to give him some taste of that course which in pursuing his study he may not unprofitably observe. For though the way were plain, yet to them that know it not, it is hard and difficult. And as the first yoke is to the young steer heavy, not because he is not able to bear it, but because he is unacquainted with the carrying of it, so young Students though they be in age and capacity mature and perfect, yet because they adventure upon a new enterprise whereof they never had trial, they are somewhat troubled at the first: yet in continuance of time, by labour and some direction of Veteranes in the Art, they pierce through the thorny fence or bar of these great difficulties: but here let the Student take courage unto him, and when the door is opened, let him not doubt to enter. As he must not neglect time, which is a consuming treasure, so he must make distinct choice of it, least omitting better opportunities, he do cast himself into the straits of time and necessities, whereby he shall find much encumbrance, and his proceedings shall be crossed by many interruptions. And surely as in all matters of moment, the place where a thing ought to be done is greatly to be regarded: so likewise the time wherein it is to be done. For the turning of all temporal affairs doth depend upon these two hingings, and these circumstances do either make or mar the substance of our actions. It hath been questioned of diverse whether the morning or the night be more convenient time for the study of the Law, which because it is no modern doubt, but either part hath had favourers and patrons in all ages, and to the end that by some clearness of reason the truth of this matter may appear, I will bestow some pains in the opening of this point.  
Marsilius Ficinus a man of excellent learning and judgement doth by five reasons prove that a man should rather rise in the morning to study, then watch in the night. 
k Marsilius Ficinus lib. de vita sana. c. 7.  His first reason is borrowed of the Astrologers, which he doth not greatly urge, because he had small regard of their vain speculations: but admitting that they say to be true, he thus reasoneth: there be three planets which be very favourable to Students in the course of their studies. Sol, Venus, and Mercury, all which in the night are most remote from our Hemispheere, and go into the twelfth house of the heavens, which is called the prison, toward the West. His second reason is this. The spirits of our bodies do follow the state and disposition of the air. Now in the morning, when the Sun riseth, the air is subtilized and made rhinne, pure, and free from all gross vapours. But in the night time it is thickened, and corrupted with contagious exhalations, which possessing the senses, do pierce into the brain. Thirdly, the day was made at the first, for labour, and the night for rest, (and therefore it is said in the 104. Psalm. Thou makest darkness and it is night, wherein all the beasts of the Forest creep forth, when the Sun riseth, they retire and couch in their dens. Then goeth man forth to his labour, until the evening.) And whilst the Sun holdeth and containeth his race in our Hemispheere, with his beams he doth open the poares and passages of our bodies, and from the centre, to the circumference of the same, he doth enlarge the humours and the Spirits which maketh us more apt to labour and study: but when he departeth from us then all these things are bound and straightened, and then we are driven and provoked to sleep. Fourthly, it is very healthful unto us to use labour or study in the morning, which if it should be in the night the spirits being greatly wasted and consumed by the motion in the daytime, the body becometh weak, and so is utterly unfit for any kind of labour. And he that giveth himself at that time to study, causeth the Spirits to fly up into the head, and they being so distracted, cannot yield sufficient service either to the head or to the Stomach. fifthly if a man study soon after supper, the nourishment is resolved into gross vapours which do fill the body and are very noisome obstupatives to the senses. For the meat being destitute of heat and spirit, doth wax raw and doth putrefy in the stomach. So that the brain is offended and our study greatly hindered and impeached. It may be added for a sixth reason, if any thing may be added to Ficinus. The spirits wherein all our agility and dexterity doth consist, by which the brain doth work, are together with the other parts of the body refreshed and strengthened. So that in the morning they must needs be more serviceable then at night. Seuently, the fantasy or imaginative part of the Soul which helpeth greatly in study, and principally in the study of the Law, is in the night time confounded and obscured. Lastly the body in the night time waxeth more dull, so that the mind cannot use it as a convenient instrument. For when the stomach is full and stuffed with meat, the thick air being round about us, stopping the poors, the great store and abundance of humours is carried, as Aristotle saith 
l Lib. de somno & vigil. c. 3.  to the head, where it sticketh for a time, and layeth as it were a lump of lead upon the brain, which maketh us drowsy and prone to sleep: than it descendeth by steps or degrees, and coming into the other parts doth engender sleep. And it is the opinion of a learned Physician, 
m Lemnius lib. 1. de complexion. c. 9  that the nightly study is unseasonable, & that it wearieth and weakeneth Students, making them lean and exhausting their bodies. For by late watchings their vital spirits through too much intention are weakened, and their native humidity dried up. Demosthenes did study much by candle light, and therefore his orations were said to smell of the Lamp: but he did not begin to study till the first entrance of the morning, and herein he did endeavour to excel every man. But whosoever will follow Demosthenes in this, had need to be well advised of the strength and constitution of his body and to examine, Quid valeant humeri far, et quid ferre recusent. For nature must not be oppressed, but measure and mean must be used, lest the stomach being made by too much fatigation unable to digest the meat received, the poares of the body be clean worn out and extinguished. The whole Senate of Physicians do call the morning hours, the golden hours, in regard that the body is then in best temper. This may suffice to persuade, that the morning is more fit for all kind of study in general, and by consequent for the study of the Law. I hath been proved by probable reasons, and by authority of wise men. If this will not serve, hear the voice of wisdom herself. I love them that love me, and they that seek me early shall find me. 
n Prover. c. 8. ver. 17.  I have dwelled the longer in this question, because it is very expedient for a Student, to know the best time of his study, which if it be used in season, may prosper, and take good effect: otherwise his labour may be unprofitable God (saith) Solomon hath made all things good in their time. 
o Ecclesi. c. 3.  And Ecclesiasticus would have every man to observe time. 
p Ecclesi. c. 4.  This therefore I will no longer handle, being a matter plain, but will satisfy the Student in other difficulties, which are more frequent & doubtful, and are occasions, that many which do enter into this study do break off their course, and bid the Law farewell. The books of Law, say they, are not pleasant to read, the words or terms are harsh and obscure, the style no whit delightful, the method none at all. It is a science void of all proper definitions, artificial divisions, and formal reasons. To answer this cavil, (for I cannot blainch it whiter.) I will use a twofold manner of confirmation, and will show that either the Law hath those things which they deny unto it, or if it do want them, it needeth them not. The writings of wise and grave common weal men learned in the Law are not to be censured by Grammarians, and Rhetoricians, who make a gallant gloss of Clytemnestraes' mules, Alexander's horse, and such frivolous vanities. For their study was far different being for the general good and commodious government of the common weal. And if any man reprove them for want of sharpness of invention, and fineness of wit, let him be well advised, and consider the substance of their works, and he shall find, that they carried Mercury in their brain, and not on their tongue, and that they wanttd not wisdom, though they were defective in Rhetoric, which not to have joined with wisdom, is so far from fault, that if they had conjoined it they had committed a fault, for who will not dispraise & detest curled hair, & painting of the face in an aged Matron. And in their writings wherein their chief purpose and address was, to search out the truth of doubtful matters and to deliver it to posterity, there could be nothing worse, than a curious kind of style, which is used commonly of them, that seek to flatter & to dissemble, and to bewitch with a familiar kind of persuasion the common people, with whom such flowers are of more account, then substantial fruit. All kind of things is not convenient for all sorts of men. Rhetoric I grant is a pleasant thing, and full of delight. But in professors of gravity, neither comely nor commendable. Who would not allow a tripping gate, nimble hands, glancing eyes in a Stage-player or dancer. But in an ancient Citizen, or grave Philosopher, who would not dislike them, blame them, abhor them. If we see a young damosel pleasant and talkative, we do not reprove it in her, but if we find that in a Matron, we loath and condemn it. And truly from the purpose and practise of grave men, there should be nothing more different, then that which savoureth of too much daintiness or curiosity. Alcibiades his shoe is not fit for Socrates his foot, and it is not convenient for grave men to celebrate the feast of Bacchus in the Temple of Vesta: there is great distance betwixt the style of the Courtier, and the professor of the Law: For if the Courtier should neglect delicate speech, he should be no good Courtier: so if the professor of the Law should affect it, he should not speak like a Lawyer. If Pythagoras could have lived without meat, he would not have eaten so much as herbs, and if he could have expressed his meaning by signs or gesture, or by any other mean then speech, he would never have spoken, so loath was he to offend in superfluity: Therefore the writers of the Law are not to be reproved for doing that, which if they had done they might iusty have been reproved. Cicero when he treateth of matters of Law, speaketh like a Lawyer, and a Lawyer must speak as the Law doth speak: Therefore Baro 
q in Epist. ad Com. just.  saith well, the writers of the Law would not have left to posterity, so many Law-bookes, if they had affected a choice phrase of speech. And surely if when the Latin tongue did most flourish, the Caesars and Cicero himself, did not use any gorgeous and filed kind of speech in matters of Law, shall we desire it of Bartolus, Bracton, Britton, and Glanuill, when eloquence was in the Eclipse or wain, & exceedingly decayed. Varro saith, that by the diverse mixtures of people & nations, old words grow out of use, and are changed, and new do take place: 
r Varro lib. 4. de lingua latin.  How can it then be, but that the Common Law should have harsh, obscure, difficult, & strange terms by the commixtion of the several languages of the Saxons, Danes, and Normans, the authors of the same. Polybius reporteth, that there was such alteration of the Roman language soon after the expulsion of their king, until his time, that they which were most skilful of antiquity could hardly understand a great part of the words 
s Polybius lib. 3. hystor.  which doubtless was a great impeachment to learning and knowledge. If the received words of the Law should be altered, it may well be presumed that many ancient books of the Civil law, & the old year books would in short time, be hardly understood: And I am fully persuaded, that if the ancient Terms of the Law should be changed for more polite and familiar novelties, the new terms would be nothing so emphatical and significant as the old. The words of the law may be compared to certain Images called Sileni Alcibiadis, whose outward feature was deformed & ugly, but within they were full of jewels & precious stones: so the words of the Law, though they be rude in sound, yet are they preignant in sense. But some perhaps will say mine ears cannot tolerate such an unpleasant sound and so confused a style, O delicate fellow, when you go to the Theatre or dancing School repose yourself wholly in your ears, but when you come to hear matters of weight handled & discussed, rest not upon your senses, but upon your mind & understanding. Alcibiades was more moved by the naked speech of Socrates, then by the laboured eloquence of Pericles: But this rhetorician will reply: I confess the Law to be of itself a reverend & excellent thing: but it would be no whit worse, if it were more finely and politely delivered. Who will deny that which is comely of itself, to be made more comely, if other things be added to adorn it? To answer this briefly and plainly, many things there be to which if you should add any other thing, you should take away their grace and beauty. They be of their own nature in so good estate, that you can not change them, but you must needs make them worse: A Tomb or pillar of marble, if it should be painted with any colour, should lose the former grace, & be a great deal worse: & a beautiful face is often disgraced, by a needle's ointment, & so it is of other things which of themselves are fair & comely: the thing which is added hideth that which it findeth, & showeth that which it bringeth: & these things which are handled in the law are not adorned by the varnishing of art, but are obscured by it. And it is not convenient in such a serious matter to dally with tropes & figures, nor to riot with superabundance of words, nor to flourish with eloquence & diaperd phrases: But yet he will further object, Though it do not belong to the professors of the Law to speak and write figuratively; yet surely it behoveth them to speak and write in good congruity, which notwithstanding they do not. I would gladly know what congruity it is which Curiosity doth require: The fine Rhetorician will say, absurda consuetudo disrumpenda est: The Lawyer, he will say, usus contra rationem annullandus est, he will say that this is not Roman latin, it is most true: therefore (will he conclude) it is not well spoken, nor congrue, the argument halteth. The Moscovite will speak of a thing after one sort: the Fleming after an other sort will utter the same thing: neither of them speak in Latin, but in their own language: do they not therefore speak right? yes, they speak right and congrue in their own language, and so do the Lawyers in their own dialect and language proper to their Art. Doth any man think that these words, Bellum, Exul, Sylva, Proscriptio, manus iniectio, were unknown to the ancient writers of the Law? Yet sometime they do not use these, but in stead of them they say, Guerra, Bannitus, Boscus, Attinctura, Arrestum. But it is convenient that they should use these latter words, being proper to their Art or science. Neither is it meet that they should change them for the words of a strange language. Wherefore Scaliger doth upon good cause dispraise the Graetians, because they do express things merely foreign and external by words of their own Idiom: and commendeth the Romans, because they did apply foreign words to foreign matters. 
t juli. Scaliger in exercitation.  And the common law being derived from the Normans, and other nations, doth conveniently retain the words of the first Inventors. And because amongst Lawyers Latin words be used many times in an other sense than they are vulgarly and commonly taken, it is not good to have the interpretation of such words from any other than the Lawyers themselves. And though the Grammarians and Antiquaries do in the etymological interpretation of words excel: yet the writers of the Law in the Analogical interpretation of such Latin words as do belong to their art do far surpass them. I do not think any exquisite skill of the Latin tongue to be necessary in 〈◊〉 Lawyer: but hold it sufficient if he know so much thereof, and in such manner, as the common sort of men, which are conversant in the reading of Latin books. And Plato hath a good saying to this purpose, that these things ought of necessity to be known, whereof if a man should be ignorant, he should be said to be shallow 
v Plato lib. 7. de Legi.  and superficial. So much therefore of the Latin tongue ought to be known, as will keep a man free from such reproachful terms. The ancient Reporters and handlers of the Law whilst they writ of Fines, Vouchers, Remitters, Restitution, Releases, and such intricate matters, had no leisure to note the properties and rules of the Latin tongue in Cicero, Pliny, Plautus, and Varro: they inquired not which was good Latin, but what was good Law: But they were wise in their judgements, circumspect in their advise, sharp witted in their arguments, grave in their speech, subtle in their questions, cunning in their resolutions: they were excellently instructed to distinguish of ambiguous things by most witty diversities, to open and to argue hard and enigmatical cases by sound and invincible reasons, to confute that which was false, and confirm that which was true. And whereas they are impeached for the want of good and proper definitions, let me ask of these strict Logicians, what a definition is? I think they will say that it is a brief and plain declaration of the substance of a thing: and be there none such in the Law? surely many: but they will have ti to consist of the proper genus and the proper difference, as they term it, without adding any thing else: But it is sufficient if it express the nature of the thing, whereunto it is applied. May May not these be admitted for good definitions, A Fair is a great Market: a Market is a little Fair: a village is a multitude of houses: a County is a multitude of villages, Do not these sufficiently express the nature of a Fair, Market, Village, and County: yet if they should be tried by the touchstone of the Logicians, they wruld be utterly rejected as not currant. Some do spend a whole decade of hours in doing nothing else, then seeking out the proper genus and difference of one only thing, and when they have done, they are scarcely so wise as they were before, they may say of themselves as Gentilis speaketh of them very fitly: Confidentia astra petimus, ruimus in praecipitia. 
x Abberie. Gentilis li. 4. de jur. inter●p.  Their divisions like wise are reproved, because they do not flow from the essence of the thing divided: Yet it is sufficient if they do briefly divide a thing into his particulars. Who can disallow of this division used in the Law, whereby all causes are said to be either criminal, or pecuniary: none but such as will find a knot in a bulrush. Again, they say their reasons are not artificially concluded: Surely, it is not for any man, unless he be in the Schools to tie himself to a precise kind of syllogysmall logic: But if it go to the end of the controversy, it is sufficient, and that is the opinion of Alciat. 
a Alciat. lib. ult. parerg. c. ultim.  Their Method is amongst other things reproved, or rather their want of Method, which exception wanteth truth. All books written of the Law may be reduced to these four heads: either they are Historical, as the year Books of the Common Law: and Zasius his counsels in the Civil law, in which no Method is requisite, but it is sufficient to report the things done, and how they were done: or explanatory, as Mast. Stamford his Treatise of the Prerogative, and the discourses of divers Glossographers, & Commentors in the Civil Law, wherein no strict Method can be observed: For the Commentor must needs follow his author every way that he goeth: And if there be no Method in the one, there can not justly be any demand of the other. For he that undertaketh to comment, or to confute, must apply himself wholly to the course of his author, or the adverse party: And therefore Scaliger said very aptly to ●ardanus, Sequor te non quò ducis, sed quò trahis: 
b jul. Scalig. in exercitati.  Or else they be Miscellaneall, and in such there needeth no Method, because things of diverse sort, and not depending the one upon the other are laid together: And such are the Abridgements of the Common Law, and the Pandectes of the Civil Law: Or else they be Monological, being of one certain subject, as M. Stamford his book entitled the Pleas of the Crown, Ma. Lambards' justice of peace, whom if any reprove for lack of method, surely his judgement is out of order, and that excellent Book of Albericus Gentilis, a Civilian De legationibus, than which I have not seen any thing done with more plausible, artificial, and exact method which as it is very hard for any to imitate, so it were to be wished, that he would in some other like treatife equal himself.  
But yet an other objection having more favourers than the former must be awswered, which is that the Law is uncertain, and that Lawyers in their opinions and arguments do greatly differ, and dissent. But here the matter is greatly mistaken. For the Law itself, which doth consist of agreeable conclusions, and of the judgements, awardes and opinions, to which reason and truth have subscribed, is not uncertain, howbeit they which do argue of new questions, and causes never heard off before, or such as for their great difficulty have not yet been decided, do in argument contend amongst themselves: but that which moveth disputation is not the obscurity or doubtful understanding of the Law, but the qualities and circumstances of the persons, of the actions, and accidents, of the time, the place, the antecedents, and consequents. And though reason be opposed to reason, and circumstance to circumstance, yet the Law is never opposed to itself. And if a man will condemn an art, because the professors and practisers are divers in opinion, surely there is no art, nor science, which will be free from condemnation. Go to the Historiographers, who should report the truth of every thing, you shall find them at great odds: Lyvie against Polybius, plutarch against Livy, Sigonius against plutarch, and Xiphilinus the interpreter and abridger of Dio against his author. Dio reporteth a prodigious miracle, which Xiphilinus altereth, setting a new face upon it, and discrediting his author. 
c Xiphili. in vita M. Anto. Philoso.  Go to the Grammarians, you shall find seven great Masters at variance about this one word Anticomarita. 
d Eras. li. Colloquior. in Synod. Gramma.  Go to the Philosophers, there is great dissension and a diametrical repugnance of opinions amongst them: there you shall see the Parepatetikes against the Academikes, the Epicures against the stoics, the Cyrenaikes against the Cynikes, the Nominalles against the Reals, the Carpentarians against the Ramistes. Go to the School of the Physicians: you shall have the like disagreement: Galen against Hipocrates, Auenroes' against Galen, Auicenna against Auenroes', Paracelsus against them all, and Erastus against him. Will any man now condemn History, Grammar, Philosophy, and Physic? If not, than it is evident, that an Art or Science is not to be reproved, because the writers thereof do in opinion or argument disagree. No more is the Law to be dispraised, but rather to be liked for the variety of opinions in it. For as by the collision or beating together of Flint and Iron fire doth appear, So the truth is disclosed and made manifest by the conflict of reasons. A man shall more easily and discreetly judge of things (saith Aristotle.) If he have heard the reasons on both sides contending like adversaries. 
e Aristot. metaphy Sicor. 2. c. 1.  But if some men be more contentious in points of Law, than others, that is the fault of the men, but not of the art. The knowledge of the Law (saith Cicero) is not Litigious, but the ignorance thereof. 
f Cicer. lib. ●. de Fi●.  And if a man should defer his study of any art, or science, until the writers thereof did fully, and vnitedly consent, It would be as vain a thing, as if a man should purpose his journey from London to York, but should make a vow not to begin his journey, until all the clocks in London should strike together.  
Now that I have removed out of the way all such objections, as might be occasion of impediment, and interruption to the student, I think it not beside the purpose, to prescribe and commend unto him some special writers of the Law, in the reading of which, he may with advantage and overplus bestow his pains.  
He that frameth himself to the study of the Civil law, may very profitably employ his pains in reading of the Code, Novellaes', and Pandectes, which are necessary for the profession. Of the ancient writers I think these are most convenient to be read, Bartolus, Baldus, Paulus de castro, Philippus Decius, Alciatus, Zasius. Of the latter writers, Budaeus, Duarenus, Cuiacius, Hotomannus, Donellus, and among these, yea above these, him whom I lately named Albericus Gentilis, who by his great industry hath quickened the dead body the Civil Law written by the ancient Civilians, and hath in his learned labours expressed the judgement of a great state-man: the soundness of a deep Philosopher, and the skill of a cunning Civilian: Learning in him hath showed all her force, and he is therefore admirable, because he is absolute.  
The common Law is for the most part contained in the books called the Annals of the Law, or year Books, all which are to be read, if the student will attain to any depth in the Law. In them he shall see notable arguments well worthy of pains and consideration. The two late reporters are Ma. Plowden, and Sir james Dyer, who by a several and distinct kind of discourse, have both laboured to profit posterity. Some humours do more fancy Plowden for his fullness of argument, and plain kind of proof: others do more like Dyer, for his strictness and brevity. Plowden may be compared to Demosthenes, and Dyer to Photion, both excellent men, of whom plutarch reporteth, that such things as were learnedly, wittily, copiously, and with admiration dilated, and delivered at large by Demosthenes, were shut up in few words, compendiously recited, and with admiration handled of Photion.  
There be certain ancient writers of the Law, namely Bracton, Britton, and glanvil, whom as it is not unprofitable to read, so to rely upon them is dangerous: for most of that which they do give forth for Law, is now antiquated, and abolished: their books are monumenta adorandae rubiginis, which be of more reverence than authority.  
Ma. Fortescue in his writing showeth a sharp judgement, and in this is exquisite, and artificial, that where he endeavoureth to be plain, he spareth not to be profound. For he writ to a King, who desired to have intricate things plainly opened.  
Ma. Littleton laid a sure foundation of the Law, and by his own book hath deserved more praise, than many writers of note and name by their ample volumes: out of the great books of the Law he gathered the most special cases, which were either generally agreed upon, or by the Court awarded to be Law, or else in all ages received for positive rules. For very few there be throughout his whole treatise, which may not be signed with one of these three marks: his book doubtless is of such singularity, that Littleton is not now the name of a Lawyer, but of the Law itself.  
M. Fitzherbert must needs be commended for great pains, and for well contriving that which was confusedly mingled together in many year Books: but he was more beholden to nature, then to art, and whilst he laboured to be judicial, he had no precise care of methodical points: but as he was in conceit slow, so he was in conclusion sure: and in the treatises which be of his own penning, he showeth great judgement, sound reason, much reading, perfect experience, and in the whole conveyance of his discourses giveth sufficient proof, that he sought rather to decide then to devise doubtful questions.  
Mast. Brooke is more polite, and by popular and familiar reasons hath gained singular credit, and in the facility and compendious form of abridging Cases he carrieth away the garland. But where Ma. Fitzherbert is better understood, he profiteth more, and his Abridgement hath more sinews, though the other hath more veins, but I am ●oath to make them countermates, and therefore leave the judgement thereof to others.  
In Ma, Parkins his book be many commendable things, delivered by a ready conceit, and pleasant method: many excellent cases which savour of great reading, and good experience, his Treatise is to young Students, acceptable and precious, to wh●m his very faults and errors be delightful, but it might be wished, that he had written with less sharpness of wit, so he had discoursed with more depth of judgement. For he breaketh the force of weighty points with the shivers of nice diversities, yet many things are to be allowed 〈◊〉 him, many to be praised, so that the reade● be careful in his choice, wherein he was too careless.  
In Mast. Stamforde there is force and weight, and no common kind of style: in matter none hath gone beyond him, in method, none hath overtaken him: in the order of his writing he is smooth, but yet sharp, pleasant, but yet grave: famous both for judgement in matters of his profession, and for his great skill in foreign learning. And surely his method may be a Law to the writers of the Law which shall succeed him.  
Ma. Rastall for his long and laborious travail in collecting matters of weight, and moment, which lay dispersed, and reducing them to a convenient form hath deserved never to be forgotten. And I know not whether I may more justly commend him for his greatness of knowledge, or for the largeness of his books and labours, or for his special care of doing things exactly.  
In Ma, Theloall his Digest of writs, diligence and desire to profit is eminent. He endeavoured to be like M. Stamford: but he is so far distant from the delightful progress of his style, and method, that he may seem to have lived in some other age a long time before Ma. Stamford. But as his strength was less, so his labour was equal. For in handling one title of the Law, he hath dealt so painfully, that no point can be named concerning that Title, which he hath not discussed, nay to give him right, hath not fully discussed.  
Ma. Lambards' pains, learning, and Law, appear by his books, which are conducted by so curious method, and beawtified by such flowers of learning, that he may well be forted amongst them to whom the Law is most beholden. His style runneth like a temperate stream, his excellent knowledge and use of antiquities argueth no small reading, and a singular conceit: He hath been so universally beneficial to the whole Realm, that whosoever despiseth his works, bewrayeth himself.  
M. Crompton hath taken great pains in this study, and his books are in every man's hands, which proveth their general allowance, his cases are very profitable, and apt for the title to which they are applied, and so compendiously collected, that a man may by them in few hours gain great knowledge.   

Certain Rules to be observed of the Student in the reading of his books.  
The fourth Chapter.  
NO actions have good success, which be rashly and ex abrupto undertaken without direction: for where advise faileth, there fortune is blind, and not in other cases, and it is far greater travail to achieve any matter of difficulty by self labour, then by the prescription and instruction of others: Wherefore it shall not be inconvenient to propose certain rules, by which the Student may hold an even course in the study of the Law.  
In the understanding of the Law the Student must not vary or depart from the proper sense & signification of the words, unless thereby some absurdity, inconvenience, or unjustice may appear: for otherwise the property of words is strictly to be maintained, & retained. Therefore let him be diligent to search out the proper sense of words: for as Celsus saith, Scire leges non est verba earum tenere, sed vim et proprietatem, 
a Celsus li. 9 digestor. Ploughed. Comment. 82. per Saunders.  To know the Law is not to know the words of the law, but the force and property of the words: for words are as it were servants to things, because they were first invented for the plain & perfect description of things: for though nature do make sounds, yet industry doth coin words, without which our understanding might be contemplative, but not practical: for without them the understanding is in manner bound, or maimed, because without freeness of speech, and plenty of words it can not display itself, nor extend his force to the opening & discovery of any mean matter. And as art maketh the mind to speak, so the mind or understanding maketh art to write. Certain it is, that without words a man's meaning may not be certainly known: Of words some be artificial, & some inartificial: inartificial are those which the common or vulgar sort of men do use for the delivery & declaration of their intentions and meanings, serving not for the illustrating of arts and sciences, but only for mutual conference betwixt man & man: Artificial, are these which the inventors of arts have devised for acquainting the mind with the rules & mysteries of their arts, because words fitly & accomodatly used are the very images and representations of things, which do lead the understanding as it were by the hand, to the apprehension & perfect knowledge of the things themselves: wherefore in this respect diligence must be used of the Student.  
2 Where the Law is obscure, that sense must be taken which is least▪ prejudicial: for every perfect speech of man consisteth of two things, of words, and of meaning, and when both the words & meaning are plain and manifest, he that doubteth of any thing is rather foolish, then curious: But when the words be directly repugnant to the meaning, the whole proposition or assertion is merely void. Obscurity in writing or speaking, is when the sense can not be gathered, 1. by that which of the most part of men is usually done, 2. nor by that which was usually done by him that uttered the words, 3. nor by the custom of the country, 4. nor by the common use of speech, 5. nor by the pr●misses nor by the ●●quel: And therefore if a man will hire workmen, and will covenant with them that he will give them as much as other men of the same village or parish, if some give by day three pence, some vi. pence, some two. pence, the covenantor in this case shall give but two. pence: 
aa Guido question. 252.  because in obscuris quod minimum est sequimur: Otherwise it had been if it had been plainly & expressly said (as much as any other man of the said village or parish.) So if a man promise upon good consideration to give to every of the Canons of a Cathedral church a quarter of Wheat every year, and the number of the Canons be augmented: yet the grant is restrained to that number, which was at the time of the grant. 
aaa Imo c. literas de resscript. 38. H. 6. 10. 39 H. 6. 6. Temp. E. 1. Common 28. & 21. E. 3. 2. per Wilby.  Yet the Law doth sometime construe devices by mediocrity: 
b Philip. Dec. Comment. ad regul. iur.  As if a man devise to one two cups for his table, without expressing the metal whereof they shall be made, they shall neither be of gold as the best metal, nor pewter as the base metal, but of Silver as a metal betwixt both: But that is, because every devise ought to be interpreted for the benefit of the devisee, & yet as near the meaning, & as far from the prejudice of the devisor as may be: Therefore in devices not words but meaning is followed, & a transposing of the words may be used if the meaning require: confused things must be distinguished, generality restrained, severed things must be conjoined, implied things must be explicated. But in bargains & contracts we must not respect so much that which was meant, as that which is spoken, because bargains do properly consist in facto, & therefore in matters of contract a man's will is rather gathered by his words, then by his meaning: for, propositum in mente retentum nihil operatur, and as the words do sound, so his will is to be construed: and the words of the contract be the substance of the contract.  
3 When the opinions of the learned in the Law are repugnant the one to the other, it is the safest and best way to follow that opinion which is most agreeable to reason: for if contrary reasons be probable, the better of them is to be chosen, and that which is more consonant to Equity: and where the reason of the Law doth fail, there the disposal of the law doth fail: 
bb li. adiger. § quamuis. de iur. patron. li. 7. P. tit. 14. c. cum cessant de appell.  As of the contrary part where, the reason of the law taketh place, her the law taketh effect. 
c l. non possunt et li. nam et ait Pedius de ll. in p.  But if contrary reasons do seem to be of great force, whereof the one tendeth to a public good, the other aimeth at a private advantage, that which is for the common good is more to be embraced, favoured, & followed: for that which is good to many must needs be good to every particular person: and these things which are generally expedient, are with good reason preferred before such things as do peculiarly profit. 
d julian in l. ita vulnerat. § quod si quis absurd ad leg. Aquilei.  But that reason which is for the profit of a private man, and doth not prejudice common right, may well be admitted. Public profit may be considered after four manners, 1. When profit doth accrue both generally & particularly, as by the government of Magistrates, 
e l. i §. huius. ff. de insti. et iur.  2, when the profit is general, but not particular: as locupletatio aerarij, the enriching of the Treasury in Cities & Towns corporate, 
f l. pen. c. de princip. li. 12.  3. when the profit is private, but yet a public good cometh of it: as the dowry of women, and the infranchising of Citizens, 4. when it doth so profit particularly, as that it doth not disprofit generally: g. as when we say that it is not expedient, that men should misspend their goods, or throw them into the Sea: That reason therefore is of more force in law, which is more generally commodious.  Atque ipsa utilitas justi prope matter et aequi. 
h Horati.  
It is good therefore for the Student to fifth out the reason of the Law, & that by very diligent & earnest search: for the reason of the law is the life & soul of the Law: Wherefore not without good cause is Bartolus reproved of the Civilians, 
i Alciat. li. 1. de verb. sign.  for that he denied reason to be of the essence of the Law: And surely I think there is no Law wholly without reason, I mean which was not grounded upon reason at the fifth making of it. Yet I will confess that the reason of many Laws is so obscure, and uncertain, that it can hardly be found out, conceived, or delivered. The Law is the invention of wise men, who would not make any thing public without reason, though the reason of the Law may be hid from him, from me, and from a number of men: Neither are we to think that any Law is therefore without reason, because a reason thereof can not be rendered: for as Cicero said well, Iniquum est quod accidit non agnoscere, si, cur id accidat, reperire nequeamus, 
l Cicer. in ora. ad Brut.  It is an unjust thing not to acknowledge the thing which hath happened, because we cannot find out the reason, wherefore it happened. It is not good to affirm that the Laws made by wise men do want reason, because we can not discover the reason. But as I do not like Plato his conceit, when he forbiddeth young men not to inquire of the reason of the laws: 
m Plat. lib. 1. de leg.  So to be too curious in the inquisition of it, will be rather matter of trouble then of praise to the Students: Therefore it is a point of humility & modesty to think those things, which by grave & sage men have been established for law, not to be without reason, though the reason thereof can not be discerned. And that which Gentilis wittily speaketh of the Civil law, may be affirmed of the common law of this realm, Rationem ubique habet, sed non ubique conspicuam. 
n Alber. Gentilis lib. 2. Epistol. c. 2.  Castrensis is so peremptory for the reason of the law that he boldly avoucheth, that he never saw any law, whereof he did not see the reason. 
o Castr. in eo § item si reip.  Theodosius did ascribe such authority to the deceased professors of the law, that he would have their answers in doubtful matters to have the force & strength of a Law. And the same thing was done by Augustus, as Pomponius reporteth. 
p li. 2. de orig. iur.  But yet I could wish, as Gentilis 
q Abberic. Gentil. lib. 3. Epistol. c. 17.  & Alcitat 
r Alciat. lib. 4. perarerg. c. 17.  do require, that the authorities and cases of the learned writers of the Law should rather be weighed, then numbered: that is, should rather be examined how they accord with reason, then how many they be in number: but if it so fall out, that two men of great judgement do dissent, his argument is to be held for Law, which reason doth inform & enforce to be agreeable to the truth: For no man will intend the meaning of the Law to be, that the opinion of any man, though singular in knowledge, should be preferred before the truth: For both the Lawyer & judge are the ministers & dispensers of justice, & of the gifts of God, & are servants to God himself: but the servant must not do that which the Master will not permit: but neither justice nor God will do any thing against the truth: Therefore, neither the Lawyer nor judge ought to do any thing against the truth. If justice should judge according to opinion, & not according to verity, it should then do injury, which thing is against her nature. And though many arguments be made for the preserving and maintaining of the rigour of Law, yet none of them ought so to be admitted against justice and truth, as that occasion of injury may seem thence to arise, whence right and equity should proceed: 
s l. meminerint. c. un. vi. li●. 42. coll. 9  because no reason of the law, no course of equity will tolerate, that those things which have been conveniently introduced for the profit of men, should be against their profit with a more hard and rigorous interpretation restrained. For these things which be established for a certain end, ought not to work the contrary. 
t l. quod favour▪ c. de legi.  But some perhaps will object, that a judge ought to determine and a Lawyer ought to argue, according to the knowledge which he hath by the written law, and that is the reason and conscience of a Lawyer, as he is a Lawyer. But surely such arguments are not proofs, and such judgements if they be not according to the truth of the thing itself, in reason are not sound nor maintenable. For every proof should be a true assertion, and every judgement the rule of truth. And how can that seem just according to the law, which appeareth to a man's conscience to be unjust. Surely the light of the truth in an honest mind dimmeth and obscureth all cavils and quillets: And it is a frivolous dream to think, that a Lawyer hath one conscience as a Lawyer, and an other conscience as a Christian. For he hath but one soul, and knowledge of the truth, and therefore but one conscience: for conscientia is cordis scientia, and no reason will require that a lie, by any distinction should be preferred before the truth. The principal mean to inquire after the truth of every thing, is to examine of two or more contrary reasons whether is more probable. That which is plausible to common understanding is termed probable, and when the words of a covenant or devise be clear & manifest, we follow the literal sense of them without farther investigation, because in things that be certain, and apparent, there is no place for conjecture: but when the words be obscure, or when some thing is omitted, lest the grant, covenant, or devise do fail, we have always recourse to that which is more probable, and we imagine that more was spoken then written, and more intended, then uttered. And it is not convenient, that in the affairs of men, the interpretation which dependeth upon probable conjecture should be excluded. 
a l. non aliter. ff. de legate. 3.  A thing may be probable many ways, first, 
decis. Neapol. 44. Numb. 26.  by the common use of speech, 
c Marius Salmonius ad. l. omnes populi ff. de justitia & iure.  secondly, by comparing the consequent with the antecedent, thirdly, by the circumstances of a man's actions, fourthly, by the concordance or agreement with the law, because every one is intended to conform his will according to law, unless the contrary be proved: 
d quaero. §. inter locatorem. ff. locat.  but it may be said, that where the words of the law do fail, the law itself doth fail. 
e L. 4. §. totie● ff. de damn. infer.  And words were invented, that they might show the meaning of the parties, therefore we must not regard that which is probable, but that which the words do sound. 
f l. si repetendi c. de condi●. ob causam.  To this I answer, that there ought to be no departing from the words, and from the true property, unless there be apparent proof of an other meaning: 
g l. non alit●● ff. de leg. 3.  but where an other meaning doth appear, there the tongue yieldeth to the heart, and the words do give place to the meaning. 
h Bal. in c. mandat. de rescript.  The words only in such case are not to be regarded, but we must consider what was meant by the person, quantity, quality, place, time, precedents, consequents, and other circumstances. 
i l. penult. ff. ad exhib. Alciat. in l. 1. ff. de verb. sign.  And where it is said that if the words fail the law doth fail, it is true, unless there be some secret intent of the law to the contrary, 
k Tiraquell. in l. si unquam ad verb. lib. Num. 35. C. de revoc. donat.  the ground whereof is probability. And though a man's sense and meaning be declared by his words, 
l Quintilian. lib. 7. c. 7.  yet because there be more things which we think, than which we speak or write, the speech of a man is not always the touchstone of the mind, but the concurrence of circumstances: and though a man's words ought to be taken most strongly against him, 
m ad. d. l. si inguam in princi. num. 54.  yet they are well to be sifted & examined 
n l. semper in stipulationibu● ff. eod.  lest the interpretation be too burdenous in some case, 
o Loriotus de reg. axiom. 105.  and so unjust against the party. A man's speech doth consist of words and meaning, even as a man himself doth consist of body and soul, or to make the matter more plai●e, the words are but the superficies, and the intent or meaning is the substance. 
p l. tutor petitus §. 1. ff. de excus. tut.  And the law traceth the meaning of a man by the circumstances, even as the hunter traceth the hare by the print of his foot. 
q Bartol. in l. si quis serio coll. ultim c. de fur▪ & Cons. 275. lib 2. num. 2.  Yet I would not that a man's deed or act in the country should be made frustrate by some jewish or mystical interpretation: but such an intendment must be taken, as the words being compare● with circumstances will yield. For words are not by violence to be racked, but by circumstance to be ruled. And we must always so interpret, that a man's right may be upholden. But it may be further objected, that in grants and contracts, and in other private affairs Casus omissus habetur pro omisso 
r l. si commodissim. ff. de liber. & posthu. l. post dotem. ff. solut. mat●im.  and the inte●●ion or meaning of a man, which is not apparent and manifest, is as a child unborn, which is of no account till he be brought to light. 
s l. Vlt. c. de posth. haered. instit. Bald. ad l. 1. C. qui admit. ad bonor. post. & col. 9  For a man's speech is an external act, which is ordained for the declaration of his inward meaning, 
t l. Labeo ff. de supell. legate.  and therefore words are said to be the limits of our meaning. 
u Socyn consi. 4. lib. 41. jason. Cons. 140. lib. 2.  To answer directly, these words (Casus omissus etc.) are to be understood only in such cases where a thing is omitted, both in respect of the not expressing of it, and in respect of the not implying it. But where the law will uphold the meaning of the party, there is no need of words: and though words were invented, that they might express our thoughts, yet by them only our meaning is not signified. But there be other signs 
x l. 3. ff. de testi. l. de minore. ff. de quaest.  namely, the circumstances before the act, in the act, and after the act. Thus it is evident, that the best and most probable reason in the conflict of opposite arguments, is to be sought for by the Student, and how it may be found.  
4 The best interpreter of the law is common reason and intendment. 
a l. si de interpret. ff. de ll.  Wherefore if any one man's opinion do differ from common reason, let the Student avoid it. Neither are such things without cause to be altered, which have always heretofore received a certain interpretation. 
b l. minime ff. de legi.  Neither is the common law any other thing, than a determinate order established and ratified by common consent. Wherefore Bodinus saith not well, who putteth this difference betwixt a law and a custom, in that a custom is accepted by the plausible agreement of the multitude, but a law springeth up in a moment, 
c Bodin. lib. 1. de repub. c. 10.  and is commanded by the authority of the ruler, many times against the liking of them that are bound by it. For common law is that which is made and approved by common allowance, and therefore it is law, because it is commonly used for law. Wherefore Athenaeus 
d Athenaeus lib. 12. c. 22.  and 
e Polibyus histor. lib. 6.  Polybius do upon good ground & reason reprove the laws of Plato, because no nation of Greece could be persuaded to use them: but as Plato feigned laws, so he might likewise feign men to use them: therefore Horace said rightly, Quid leges sine moribus vanae proficiunt? Laws without use are vain and profit not. 
f Horat. lib. 4. ●arm▪ ode. 24.  But here it is good for the Student to be assured of what nature & quality the thing is which I call common reason or intendment, for that may seem to offer doubt, whether we ought to ascribe common reason and opinion to the number of authors, or to the worthiness of them, or to the persuasion of reason which doth concludenter demonstrare to the sense & understanding of the most part of men of indifferent capacity. I would have common opinion taken according to this last branch.  
5 The things which be odious in law must be restrained, & the things which be favourable must be enlarged. Private customs are odious in the eye of law, & whatsoever swerveth from common right: 
g c. cum delect. de consuetud. l. cum quidam. ff. de lib. & posth.  for the common law was framed in favour of public tranquillity, & therefore the departure from it must needs be accounted odious. 
h Aymo consil. 170. nu. 3. Baldus in l. non possunt ff. de legib.  The law is more prone to acquit, then to condemn: 
i l. Arrianus. ff. de oblige. & act.  and because it is better with the restraint of an odious constitution, to absolve one that is guilty, then with the enlarging & amplifying of it to condemn one that is innocent, 
k l. absentem. ff. de paenis.  therefore there is nothing that requireth more diligence & consideration, then to deal warily where there is great danger to any party, that a man may not rashly determine of a man's credit, blood, or life: sith these things be of that quality, that being once lost, they can never be repaired. 
l cap. ubi maius sup. de elect. lib. 6.  But to know whether things be favourable or odious, the things are not to be considered in themselves, but th'effects which proceed of them 
m Alciat. ad l. 2. in num. 44. de verb. oblige.  as dower is favoured in respect of the widowhood, & desolatenes of the woman whose husband is deceased. 
n L. 1. ff. solut. matrim.   
6 It must likewise be observed, that when a thing is forbidden, all things that follow thereof are likewise forbidden: as on the contrary part when a thing is granted, all things are implicatively granted with it, whereby we may attain to the thing granted: 
o l. ad rem mobil. ff. de procur. l. 2. ff. de iurisd. om. iud. Temps E. 1. grants. 41.  and if the beginning of things be forbidden, the end also is forbidden according to the rule, Qui meditatur principium meditatur etiam finem, 
p bald. ad L. quamuis. c. de fide comm.  and things are principally forbidden for the end to which they are directed. But here a distinction is to be used, for where the consequent is of itself available, and doth not necessarily depend upon the power and virtue of the antecedent, it may be of force, though the antecedent be forbidden, 
q Baldus ad d. l. non dubi. in 13. opposition  for than it is without the cause of the prohibition: but if it depend essentially upon the antecedent, it is otherwise. For the better understanding of this rule, it is good to be seen what may properly be said a principal thing, and what an accessory. That is principal which is of greatest moment: an accessory thing is that, which by consequence goeth with the principal. If the Queen grant unto one Cognitionem causae, her highness granteth unto him the hearing of the parties, and the examination of witnesses. So the margarites or precious stones that be in gold or silver, do yield unto it, and do pass with it, because they are but the ornaments thereof, and were applied to the decking and beawtifying of it. An accessory briefly may be taken to be that, which is adjoined to a thing, and is less than the thing to which it is annexed, either in substance or in value, or in respect both of substance and value.  
7 The validity of an act must be especially favoured, unless there be a manifest nullity in the proceeding. 
r l. quoties ff. de verb. oblige.  Therefore whensoever the nullity of an act shall appear by the proceeding of the parties, which is said to be evident, and notorious and excluding all cavil, 
s Bart. in l. 3. parag. condemnat. ff. de re iud.  it is to be held as void, but if the nullity proposed do not so appear, but requireth a deeper search, because many time's error is objected that the Suit may be protracted, there consideration must be used. But in doubtful causes interpretation must be so made, that the act may rather stand then fall. But the objection of error is alway to be favoured, when the error assigned doth concern the figure & solemnity of judgement. 
t 9 E. 4. 3. gloss. in verb. defensiones in de saepe de verb. figu.  And therefore he that will dispute of the validity of an award or judgement, aught to be wary and careful, that he put the axe to the root, and that he first examine the jurisdiction and power of the judge, because that being the basis and foundation of the judgement, if that fall, the rest cannot stand. It is therefore to be considered whether he were a competent judge by reason of the cause, of the parties, of the time, and the place. For by reason of the suit or cause, a judge may be incompetent, as if the cause belong to a mere jurisdiction, and the judge be only a Magistrate in a certain corporation: or if the cause be civil, and the judge who taketh connusans of it be judge of jail delivery, or if the judge be secular, and the cause Ecclesiastical, or if the judge have some other limited jurisdiction, and he taketh connusans of a cause not comprehended within the lists & bounds of his commission, he may be incompetent also by reason of the place, as if he judge of causes without his territory, or circuit, or else within his territory, but yet in a place exempted, he may be incompetent by reason of the time, as if he did judge before he had his commission, or after his commission expired, or if his jurisdiction were suspended, as at festival times, which we call dies non iuridicos, or at such a time, when a greater judge was present: or if the judge were called to a higher place, or if he were forbidden to exercise his power. And also the person & quality of the party is to be considered, because some by reason of a legal impediment are uncapable of the advantidge of law, as these that are outlawed, excommunicate, and out of the Queen's protection. And there can be no fast root or sure ground of their proceedings, for such are to be denied audience, because their offence & default ought not to find patronage. Likewise there may be a default in the party making an Attorney, as if he could not make an Attorney in that cause, or else by reason of the Attorney himself, as if he be uncapable of such an office as being not lawfulby authorized. But if a jurisdiction be given and granted to one, it is to be intended to be given him accumulative, & non privative, rather to enlarge, then to diminish his power. And though a judge of the jail delivery being appointed and ordained by commission to the hearing of causes criminal, may not principally inquire of causes civil and pecuniary, because it is a jurisdiction limited, yet incidently and as it were by the way, for the better examining of capital crimes, he may take notice of such things. But if the process and judgement be framed against one, who is not only not subject to his jurisdiction, but is also free from the jurisdiction of every man living, as if the party be dead, concerning whom, no act can be conceived or upheld, the judgement is void.  
Thus have I showed to the Student in so general manner as the order of this treatise doth require, and likewise so particularly, as to his understanding may be plain and manifest, what course he ought to take in examining the cases, reasons, opinions, arguments, proceedings, and judgements, whereof he shall find great store and abundance in his books. Now I will by favour descend to describe and delineate unto him briefly (for it is a matter which may be handled plainly and in few words) what course he ought to observe in the exercise of his study.   

Of the exercise and conference which the Student of the law ought to use.  
The fifth Chapter.  
EVery art and knowledge produceth effects, and like a good weapon is unsheathed & used in time convenient, otherwise it would be quickly overcast and eaten with rust. But there is nothing that with so much brightness and glory illustrateth our knowledge, as the orderly and judicial applying and accommodating of that which we have read. For as a man knoweth by his books, so he is known by his practice, and by that which he is able to perform in the faculty which he professeth, and he which knoweth to himself is not known of other men. Wherefore I suppose it a thing of exceeding moment for the Student, to demean himself well in his conference and exercise, lest the multitude of hours which he hath spent, do slip from him without use, as the sand falleth out of the hourglass, when no man seeth or mindeth it.  
1 The student of the law ought to have great regard of his speech, and that he deliver his opinion or argument in convenient and orderly sort, not after a rude confused and impolite manner, and he who is not only wise but eloquent, is without comparison the best in all professions which consist in practice and in the form of speech. Therefore parents and tutors in the University should have principal regard, that he who is to address himself to the study of the law, may be fit with a plausible grace to discourse and dispute, and even in the prime of our years this care must be had. For by nature we hold that fast which in our tender years we conceive, and the worse sort of things do steadfastly abide in us, the better is soon turned to worse, but in this matter it is good to follow the precepts of such as be neither too curious nor too ignorant: for there is nothing more like a may-game then these vainglorious persons, who have decked themselves with a false persuasion of knowledge. To the Student of the law I do therefore think this course necessary, because he must live in great celebrity in the assembly of the people, and in the midst of the common weal. Let him therefore enure himself from his youth, to frequent assemblies: let him not be afraid of men, nor appalled or timorous through a shadowed kind of life, lest when he should make use of his study, his eyes das●e at midday, and all things be new unto him, who seeketh that in himself, which is to be done and performed in a multitude: Yet I would not have him too curious and dainty in his speech, for we must use words as we use coin, those which be common and currant. And it is a great error for a man to estrange himself from the common use of speech, and to exceeding preciseness in words, and style, doth quench the heat of our invention, and bridleth the course of our wits. Yet it is commendable to have in our discourses both good words, and good matter. For Cicero did not fight with armour of proof only, but with bright-shining harness, when he did not only gain the admiration of the Romans, but their acclamation also and applause. But let good words contain in them good matter, that the Argument or discourse may not shine as it were by oil and ointment but by blood and complexion. It is a feaver-like pain to endure a man's speech, loadned with superfluous words. In all things decorum must be observed, lest that which we say, do turn to laughter, or loathing, and purchase the name of folly, a mean must be kept, lest our speech be dry and faint, or else too copious, and full of circumstances: yet it is better for the invention to be abundant and copious, then to be lean and poor. Words if they be not vested with the substance of things, are of no force: Rhetoric which is the Artificer of persuasion, if it be severed from circumstances, and range without learning by a facile kind of sway. It is called Atechina. If it be applied to the destruction of good men, it is termed Cacotechina, but if it be bestowed in vain and superfluous matters, it may be termed Mataeotechina, a frivolous labour, and a trifling art. There is nothing which more beawtifieth a man's speech, than an apt division or partition of the things which be handled, which doth ease the mind of the hearer, prepareth the mind of the understander, and refresheth the memory, and (as justinian sayeth) the obscurytie which doth rise of a confused text, is by separation and division dispersed and removed. 
a justin. in §. alio. insti. quib. modis tes. infirm. & in §. sed ne in primis de leg.  And as the division of fields doth make the tillage more plentiful and sightly, so doth partition in the handling of causes, adorn and garnish them. These things may be aptly divided which have a separate reason, and are sorted to divers ends.  
2 Students shall not do amiss, if at certain times they meet amongst themselves, and do propose such things as they have read or ●eard by that mean to be assured of the opinion of others in such matters. By this course it may be brought to pass, that every one may both better understand, and more firmly retain in memory the things which he hath read or heard, and these things which be to good purpose uttered of others, he may enjoy as his own. For private conference there is no time amiss; Adrianus the Emperor (as Dio reporteth) did handle and discuss points of law at dinner tyme. M. Cat● even in the Court whiles the Senate was assembling, did busy himself in reading: and surely, he that hath a mind to learn, may learn at every place, and at every tyme.  
3 Gentlemen students of the Law ought by domestical Moots to exercise and conform themselves to greater & weightier attempts, for it is a point of warlike policy, as appeareth by Vegetius to train young Soldiers by sleight and small skirmishes for more valorous and haughty proceedings, 
b Veget. lib. 1. de re militari.  for such a shadowed kind of contention doth open the way, and give courage unto them to argue matters in public place and Courts of Record, and it will not be amiss, sometimes to reason together, before men of more reading and greater judgement which may friendly admonish them, and if they err reduce them into the right way, It is good to bring such matters into question as be disputable, & may deserve argument, for it were a vain thing to make a doubt of that which is plain and manifest, as whether a rent or annuity ought to be paid to a dead man, or whether a man may commit an offence against the Law without punishment and such like, wherein if a man should a●ke any man's opinion, he might perhaps receive such answer as Labio did of jubentius Celsus: Aut non intellig● quid sit de quo me consulis, aut valde stulta est consultatio tua. 
c l. Domitins Labio de testan.  It is evident that one Law may with good probability hear several interpretations, but that sense is most to be embraced which doth take away the occasion of doubting, the way to remove doubt, is to examine well the reasons of the contrary part, wherefore Baldus saith well.  
Ferro aperire viam qui per contraria transit. 
d In l. precib. c. de impub.  And to loose doubts is to find out the truth as Aristotle saith, 
e Arist. Metaphys. 3.  but often conference and private debating of points of Law, is the fountain and original of exceeding profit, for by it the wit, the memory and the tongue, are greatly furthered and holpen, and a man is made more ready & bold for public matters, and the truth which is the mark of our study, doth more easily appear. Wherefore it is not unfitly said of Marcellus the lawyer, that every art by continual exercise doth receive increase. 
f In l. legatis §. ornatri. de leg. 3.  The wit if it be somewhat dull is by conference more sharpened, if it be ripe and ready it is a great deal more furthered, and to the memory nothing can be more profitable, which of itself is so brittle and tender, that unless it be renewed with continual exercise, it will easily perish. And in vain shall a man pass away the night without s●epe, or the day without recreation, in vain shall he run over the volumes of the Law, in vain shall he inquire after the opinions of the learned, unless his memory do represent and readily offer unto him these things being with great labour followed and achieved when time and occasion shall require, I need not show how much it doth benefit & polish the tongue: for conference is the proper exercise of the tongue. I said that boldness is procured by the frequent meeting and communication of students, & I will avow that which I have averred, for as by degrees a man doth converse and talk with his companions and such as be better than himself, so by degrees he groweth bolder, which may be gathered by that Fable of Esope: The Fox did by chance meet the Lion whom he never saw before, & was so affrighted that his senses were almost lost, when he saw him the second time, he feared likewise, but nothing so much as before, but when he saw him the third time, he was so little afraid, that he went unto him and talked with him. I said further that it was the high way to discern the truth of every thing, and therefore Archadius saith of Herennius Modestinus that by much disputation he attained to excellent judgement, 
g In. l. mune●. §. mista. de muneri. & honori.  wherefore let the student often resort unto his fellow students, and amongst them let him be well advised of his choice.  
4 After private and home exercise, public exercise must ensue, which must not be rashly done, but there must be both maturity of years and advise, lest the unripe brain do make the forehead to blush, and in stead of praise we reap contempt. Surely it is the beginning and foundation of impudence, for a man to because the opening of the door, and the holding of the Candle was not parcel of the consummation of the act, and so was the Law taken 3. of Queen Elizabeth. 
l 3. Eliz. 186. Dyer.  An adulterer did counsel the woman to murder the child when it should be borne, the child was borne and murdered by the Midwife in presence of the Mother, and by her commandment, The Mother & the Midwife be principal, and the Adulterer but accessary, because his counsel was before the birth, and he was not cooperant in the act, but because the force of his persuasion and counsel did continue until the murder it being not countermanded by him, therefore he was held and adjudged an accessary, but whether in the same case if the woman be admitted to be accessary, whether she should be a traitress or no, because the principal is no traitor, is a question which may well bear argument on the one side upon the letter of the Law, and on the other side upon the meaning of the Law, but of this matter I have given the Student a sufficient taste, and my meaning was in this treatise rather to draw the lineaments of things, then to discuss them to the full. These may serve to prepare the mind of the Student to handle such things as may seem to be contradictory in the body of the Law.  
6 That the Student may with more ease compass and accomplish the things precedent, it is good for him to have great care of preserving and continuing his memory, and therefore it is a profitable course under titles to digest the cases of the Law, into which they may transfer such things as they have either heard or read, neither is it safe to trust to other men's Abridgements which are little available to such as have read little, but that which we by our own sweat and labour do gain, we do firmly retain, and in it we do principally delight, and I am persuaded there hath never been any learned in the Law, and judicial, who hath not made a collection of his own, though he hath not neglected the Abridgements of others, The memory is specially to be helped and increased of the Student, for though it be the gift of nature, yet by industry it becometh more excellent. For the integrity of the memory it is good to have sound health & convenient digestion of the meat, and a mind free from all other thoughts, It helpeth it much to make good divisions, for he that divideth things aright, can never err in the order of things. There is nothing surely which doth either more grow by diligence or by negligence more decay than memory, It is not good trusting to a sudden memory, but a night's rest will add great strength unto it. Of what force memory is by nature and labour Themistocles may witness, who in one years space did speak the Persian language very perfectly and Mithridates who did well understand the two and twenty languages of the nations whom he did govern. M. Crassus whiles he was Precedent of Asia attained to the five differences of the Greek tongue. Cyrus did remember the names of all his Soldiers who were in his Campe. And if memory be necessary for any science, surely to the profession of the Law, it is of weighty importance, which because it doth pursue accidentia, and infinita requireth no help of nature so much as memory, for the understanding conveyeth the cases to that treasury; out of which it draweth them as often as use and opportunity doth demand. But if the understanding be good, and the memory nought, a man shall be a Lawyer to day and none to morrow. Wherefore in this part the Student must excel, and that he may excel, he must labour, and that he may labour, he must have health, which I wish unto him.   

That the understanding of the Student ought to be proportionable to the intendment of the Law.  
The sixth Chapter.  
THe Law considereth things according to public respect, that is, as much as concerneth the common weal, not according to their contingency in facto, which is every man's object, and familiar to common sense, and therefore needeth not any artificial handling: And the Students understanding must be so sequestered & rescued from vulgar opinion: being the mother of error, and measuring things only by the skin, and colour, that he must comprehend & conclude many things, which are very remote from the reach of the the senses, and from ordinary apprehension: in which contemplation the common Law of this Realm of England above all other doth show wonderful sharpness, and a most exquisite conceit, subtilizing things whereof common sense hath but a confuse knowledge, being guided by the principal reason & inseparable truth of every thing, which the understanding straineth out of the secret and hidden causes of things: for as in herbs, if we touch them outwardly, we do not find nor feel any moisture in them, but rather take them to be urie, until by pressing or distilling of them, we wring out a juice proper to their nature: So the Law doth conceive and conclude many things of ordinary contingents, which common sense can not perceive, but rather imagineth them to be clean contrary to the truth, whereas they may to a good understanding easily appear to be true by the certainty & necessary coordination of their causes and reasons. That this may be made evident I mean to annex some particulars for the explaining thereof.  
1 It is clear by Law, that a term and a freehold of the self same thing may be both in one man at one time, yet if this be delivered to a superficial understanding, it will seem a paradox. Tenant for term of years maketh his executors & dieth, the executors purchaseth the reversion, in this case both the term & feesimple are in the executor to several purposes: for the term shall be assets to the use of the testator, & the fee simple free inheritance for the use of the executor & his heirs, 
a 43. E. 3. 27. et. Br. cases.  And if a man be seized of land of an estate for life, the remainder to his executors for years, he may devise this term or assign it. 
b 16. E. 2. per Herle, Covenants 25.  And if lessee for years grant his term to the wife of him in the reversion, & to a stranger, the inheritance of the husband can not extinguish the moiety of the term: because he hath the inheritance in his own right, & the term in right of his wife. 
c 14. Eliz. 416. Com. Bracebridges case.  A man seized of land in right of his wife is attainted of felony, & the king seizeth the land pro vita viri, the king hath but a chattel & the wife the freehold: for if a stranger enter, & the husband die, the wife shall have an Assize. 
d 4. E. 3. 47.   
2 Likewise it will seem strange, though in Law & reason it be true, that a man should be remitted to his land to some intent, & yet not to an other: As if a recovery be had upon a false title against tenant in tail, the tenant in tail dieth, the issue entereth, he is in of his first right against all but only the recoveror. 
e 12. E. 4. 21. per Choke.  So if tenant in tail discontinue, & his son & heir apparent disseiseth the discontinue to the use of the father, the tenant in tail dieth, the son by M. Chookes opinion is in his remitter against all, but only the discontinue. 
f 12. E. 4. 21. per Choke. et vide 7. R. 2. tit Entre en le Per, en le collect. de Bellew.  the issue in tail which hath good cause of a Formedon in the discender, is of covin that A. should disseise the discontinue against whom he recovereth: he shall not be remitted in respect of him, but shall be accounted a disseisor: 
g 18. H. 8. 5. 15. E. 4. 4.  but against all others it seemeth that he is remitted. Tenant in tail maketh a feoffment to the use of his wife and his son being heir apparent to the entail and dieth, the issue is remitted against all persons but only the woman. 
h 4. E. 6. 68 Dyer.   
A title may be executed to some intent, and yet not executed to an other: And therefore if there be tenant for term of life, the remainder in fee to a stranger, against whom a recovery is had pro loco & tempore in a Warrantia chartae, brought by a stranger of other land, he in the remainder dieth, the recoverer is impleaded and voucheth the heir of him in the remainder, and recovereth, tenant for life dieth, execution shall be ●ued against the heir of the land whereof his ancestor had a remainder, because there was a remainder executed in the father to this intent at the time of the Warrantia chartae brought: 
i 15. E. 4. 13. per Littleton.  but to all other intents it was executory, for it was not executed that the wife might be endowed, nor for him in the remainder to bring a writ of right, 
k 40. E. 3. 43.  But the remainder in such cases is to some intents executed: for if he in the remainder had aliened his remainder in Mortmain, the lord might have entered, 
l 15. E. 4. 13.  and upon such a remainder the lord may have a Cessavit, 
m 27. E. 3. 87.  but the heir shall not have an Assize of Mortdauncester. 
n 39 E. 3. 3. Mortdauncester 50. Fitzh. Na. bre. 196. k.   
4 A thing may be extinct or in suspense in one respect, and in Esse in an other respect: the father being tenant in tail alieneth the land with warranty, and hath a rend charge in fee issuing out of the land of his son and heir apparent, which rent descendeth to the son, this rent is a good assets for the value in respect of the discontinue: and yet it is extinct in respect of the issue. 
o 31. E. 3. guarantee 39  A man seized of a rend service is bound in statute staple, and after purchaseth the land, out of which the rent is issuing after execution, the rent is extinct, as to the conusor, but in Esse as to the conusee. 
p 4. Eliz. 205. Dyer.  A corrodie is granted to I. S. for life, who granteth it back to the grauntor for term of years rendering rend, the corrodie is in Esse as to the payment of the rent, but in suspense as to the taking of the corrodie. 
q 20. E. 4. 12. 22. E. 4. 17. 18.  And it was lately ruled in one Caires case in the Court of wards, that if a man held land of the Queen by a certain rent, and the Queen granteth the rent to a stranger, who granteth it to the tenant, the rent is extinct as to the payment, but in Esse as to the tenure. The King seized of a forest granted the office of the forester to one rendering rend, and he granteth the forest to an other, the forester forfayteth his office, yet the grauntor shall have the rent: 
r 26. Ass. p. 60.  So that it must needs be that the office to the intendment of law is to that intent in Esse. And if a man grant to an other a rent out of his land in fee upon condition, that if the grantee or any of his heirs die, their heir being within age, the rent shall cease during the minority, if the grantee die his heir within age, his wife shall have dower, but cessabit executio during the nonage: 
s 10. H. 7. 13. per Keble.  But in this case it seemeth that if the heir die during his nonage, the wife of the heir shall not have dower of the rent: because it was never leviable by the son, as it was by the father. A man seized of two acres of land hath issue two daughters and dieth, now the rent is in suspense, as to one moiety, and in Esse as to an other moiety. 
t 9 E. 3. Charge 4. 9 Ass. p. 22.   
5 The intendment of the Law is as strong in a matter of law, as the truth itself in a matter in facto: And therefore if A. be disseised, and his brother maketh a release with warranty to the disseisee, and afterward entereth into religion, this warranty shall be a bar to A. although that he be living: 
u 34. E. 3. guarantee 72.  for A. may have his land by descent, and therefore it seemeth to be reason, that the warranty should descend upon him as his heir. Note here of what validity the intendment of Law is touching a civil death. The warden of the Fleet who hath the office in fee dieth seized, and the office descendeth to his son and heir, being then in prison, the Law doth presently discharge him of imprisonment, because he is to be at large the better to look to others, that be in prison. 
w Blow. Come Plaits c. 37.  A man maketh a lease to one for term of life, rendering the first seven years a rose, and if he will hold the land any longer than seven years, that then he shall pay four Marks yearly: livery is made, the lessee surrendreth at the end of the first seven years, his estate was adjudged to be but a term ab initio, and no freehold, and the writ of covenant brought against him for not repairing was qui tenuit ad terminum annorum. 
a 50. E. 3. 27.  If a man make a lease of land excepting the trees which grow upon the land, the trees are severed in law: for he hath no reversion of them, and if he sell them, and after the sale make a feoffment, the feoffee shall not have them, because they were severed by the vendition or sale of them, 
b 20. H. ●. 22.  for by the exception they were severed from the term, but not from the inheritance, but by the vendition they were severed from the inheritance. If the Bailiff of the land do demand a rend service, and the tenant denieth it, and the Bailiff saith that he will distrain for it▪ and the tenant saith that he shall not distrain, wherefore the Bailiff dare not proceed further to take a distress, for doubt of death, this is a disseystn of the rent in the eye of the Law. 
c 49. E. 3. 14. Assize 66.  And if a rend service be warranted to one, and the land doth escheat, the Law as M. Finchden thinketh transferreth the warranty to the land. 
d 45. E. 3. Voucher 72. per Finchden.   
6. One thing in the understanding of Law may be of several natures in several respects, and so one writ may be two several writs to two several intents: In an action of debt the declaration was of x. li. upon a sale, and v. li. which he had delivered to the defendaut to redeliver, and it was held good, because the action was in the debet and detinet, and the warranty of attorney and the essoin in this case shall be in placito debiti. 
e 32. E. 3. Brief 288.  Quaere, If a man lease land to one for term of years rendering rend, and the lessor granteth his rent to a stranger, and the lessee surrendreth; this doth not extinguish the rent, for now it is a rent seck which doth not depend upon the reversion, 
f ●0. E. 4. 12.  And so one man to the understanding of Law may have several capacities or respects: For if a man disseise a feme sole, being an inheritrix of certain land, and after he taketh her to wife, and they have issue, and the husband is disseised, and the disseisor levieth a fine with proclamations, the husband dieth four years after the proclamations, and before the fifth year be passed, the issue being of full age, and after the wife dieth, and the fifth year passeth, now the issue is bound as heir to his father, yet he may have other five years, as heir to his mother, to be accounted from the death of his Father. 
g Blow. Com. Stowels c. 367  So if I. S. be tenant of land, for term of an other man's life, the remainder to an other for life, the remainder to the said I. S. for term of his life, or in fee: and he is disseised, and the disseisor levieth a fine with Proclamations, and the five years incur, now is I. S. bound for the present estate, but if he in the mesne remainder for life die, he shall have other five years for the other estate. 
h Ibid.  So if a man have an estate in land for the life of A. the reversion to himself for the life of B. the remainder to himself for the life of C. and is disseised, and the disseisour levieth a fine with Proclamations, he shall have five years severally after every several estate determined. 
i Blow. Com. 368. Stow. cas.  I. S. giveth land to A. his daughter in tail, and hath issue B. another daughter, and dieth, A. dieth having issue C. a Praecipe is brought against C. who voucheth to warranty herself and B. as heirs to the donor of the reversion to have the warranty paramount, in this case is C. both the vouchor and the vouchee. 
k 2. H. 6. 16.  A term is devised to one who is made executor, he entereth, this is an administration and an execution of the term unto him, and he is both devisee and executor. 
l 20. Eli. Come Weldens' cas  A. covenanteth by Indenture with B. that the son of A. shall marry the daughter of B. and that therefore B. shall give unto A. an 100 li. & if the marriage did not take effect before such a day that then A. and his heirs should stand seized to the use of B. and his heirs until the hundred pound be paid by A. his heirs or executors B. dieth, and after the marriage taketh not effect, the use and possession of the land vesteth in the heir of B. but Quaere saith Brook whether he shall be in ward or no, for he is an heir and yet he is a purchasor. 
m 3. Mar. Br. Feff. all uses 59 & vide 3. Mar. 128. Dy. Wilf. cas & 13. E. 3. Br Exting. 45.  If I. S. be Deane of P. I may give him land to him and his successors, and to him and to his heirs, there he taketh both as Deane and as a private man, and is tenant in common with himself: so if a rend charge be granted in such manner, he shall join with himself in an avowry. 
n 24. H. 8. 30. per Pollard  Likewise the Law may deny one a benefit as he is I. S. and yet allow it unto him as he is executor to I. N. and therefore if an executor be Outlawed, or Excommunicated, which be disabilities in Law: yet as an executor he may maintain an action, because he sueth and is to recover to the use of an other person. 
o 14. H. 6. 14. 21. H. 6. 3  and so an executor may have an action of trespass in his own name, without naming his companion in the executorshippe, if goods be taken out of his possession. 
p 42. E. 3. Executns 67.  For he is possessed of them as a private man, but he is possessed of them to the use of an other as executor. 
q 11. H. 6. 35  And he need not in the case aforesaid name, himself executor. 
r 12. R. 2. Executors 75.  For if he do, it may tend to the abatement of the writ according to M. Kebles opinion. 
s 16. H. 7. 4. ꝑ Keble 19 H. 6. 65. per New●.  who saith that the possession of one of the executors (his meaning is as he is executor) is the possession of both, and herewith agreeth the opinion of Newton, but by their favours though the property of the executors in the goods of the testator be one and the same, yet the possession may be several, for he that hath the custody of goods may only be said to be in real and actual possession of the same, which kind of possession is only hear meant, for which cause a writ of Detinue that concerneth the possession of goods, shall be brought only against that executor who is possessed of the goods.  
7 
t 21. H. 6. 1. 39 E. 3. 59 H. 5. 14 11. H. 4. 46  The Law may work several things in one instant as if a disseisor make a lease for years, and after he and the disseisee release, by one deed to the tenant for years, the Law adjudgeth the release of the disseisor first to take effect, and after the release of the disseisee, for there is no privity nor estate in the lessee, upon which the release of the disseisee may enure, if the Law do not make such construction. 
u 21. Eli. Come 539. Para. cas.  If the tenant for thirty years make a lease for ten years, and they both surrender to him in the reversion, the surrender is good for both estates, and yet the lessee for ten years, could not surrender by himself for default of privity, but when the other joineth with him, his surrender shall he taken to go before and the other to follow it. 
w 14. H. 7. 1. & 4.  Likewise if the tenant for term of life surrender to the grantee of the reversion, this is both an attournment and also a Surrender. 
a 19 Eliz. 258. Dyer.  So if a man have land by descent by the Mother side, and leaseth it for years, the lessee covenanteth and granteth to pay yearly to the lessour and his heirs xx. s. the lessor dieth, the Law in a moment will convey the reversion, to the heir of the part of the Mother, and the twenty shillings to the heir of the Father's side, because it is a sum in gross. 
b Blow. Come 132. Brow. cas   
8 By intendment and admittance of Law a thing suspended may be revived, for if the donor disseise the donee in tail, and after maketh a feoffment, and the tenant in tail re-entereth, now the feoffee shall have the reversion. 
c 9 H. 7. 25. per Fineux  So if the heir in tail entereth upon the discontinue, and maketh a feoffment upon condition, and for the condition broken re-entereth, and after a recovery is had by the discontinue, the issue in tail is now restored to his first action, and the entail is revived, for by the breach of the condition the feoffment is disannulled. 
d 23. H. 8 Br. Restore all primer acc' 5.  Tenant for life, the remainder in tail, the remainder in fee to the heirs of the tenant for term of life, granteth a rend charge in fee, this shall charge the land during his life, but it shall be suspended during the entail, and after the entail determined it shall be revived, and shall charge the heir of the tenant for life. 
e 5. E. 4. 2.   
9 The Law altereth the nature or substance of a thing by matter, ex post facto, A man seized of land in right of his wife, entereth into religion, the wife alieneth, the husband is deraigned, the husband may re-enter into the land. 
f 33. E. 3. Ent congeable 52.  So if a man be indebted to a villain, who recovereth in an action of debt, and after the debtor purchaseth the manor to which the villain is regardant, and after alieneth it, the villain may now have execution. 
g 12. H. 4. Execuc' 28.  If a man make a lease for term of an other man's life rendering rend, and the arrearages incur, the lessor shall not have an action of debt, because he hath a franktenement in the rent, but if Cesty que vie die, now is the freehold as to the rent converted into a chattel, and now he shall have an action of debt. 
h 39 H. 6. 26. per Paston  Likewise a divorce altereth the estate of frankemariage into a bare freehoold. 
i 7. H. 4. 16.  If a man add a condition to a single Obligation after the delivery, this maketh the Obligation void, for now it is not his deed, and the same Law is of the rasing or enterlining of a condition after the delivery of the Obligation. 
k 36. H. 6. 5 per ash. Just.  If land be given to one in tail, and the donee giveth the land to the donor, and to a stranger for term of their lives, this is a discontinuance conditional, namely if the stranger survive. 
l 28. H. 8. 7 Dy. per Fitzh.  If the Sheriff attach one by force of a Capias that is iustistable, but if he return a Non est inventus upon the writ, he is a trespassour ab initio. 
m 3. H. 7. 11  If I. disseise I. S. and levy a fine to I. N. and after I. S. entereth upon I. N. and enfeoffeth me, and I. N. entereth upon me, and I bring my Assize, and I. N. pleadeth the fine in bar, I may avoid the fine by showing the matter aforesaid. 
n 15. E. 4. 5 per Litt.  If a fine be levied of land in ancient demesne, and the Lord disannulleth the fine levied at the Common Law, he hath restored the right to him that levied the fine. 
o 16. E. 2. count claim 10  If he which abateth after the death of the tenant in fee simple make a feoffment upon condition to be performed within nine years ensuing, and after the feoffee levieth a fine with Proclamations, and the five years incur the condition is broken, and the abator re-entereth, now the heir of him that died seized may have an Assize of Mordauncestor against the abator, whereas before he was bound by the fine. 
p Blow. Come 358. b Sto. cas.  Tenant in tail maketh a feoffment and taketh back an estate in fee, and bindeth himself in statute Merchant, and then maketh a feoffment upon condition, and after the recognizance is put in execution, and the tenant in tail dieth, and the heir in tail being within age entereth for the condition broken, he is remitted, and the recognisans avoided, but otherwise it had been if he had been of full age: for than he coming in under the estoppel should not have avoided the Estoppel, nor by consequence the recognisans. 
q 8. H. 7. 7.  If my very tenant be seized of a Manor held of the King in Capite, and of an other Manor held of me by knights service, and he is disseised of the Manor held of the King, and afterward dieth seized of the Manor held of me, whereupon I seize the body of the heir, and after the heir within age recovereth the Manor held of the King, now the King may have my land also in Ward, because the heir shall now be adjudged to be in by descent, and the King shall have the Wardeshippe of the body. 
r 15. E. 4. 14 per Littleton Skreenes cas  If my Horse strike one, and after I sell the Horse, and afterward the party that was strooken, dieth of the stroke, now shall the Horse be forfeited as a Deodand. 
s Come 290. ꝑ Car. dame Hales. cas  If a villain inflict upon himself a mortal wound, and the Lord seyseth his goods, and then the Villain dieth, now shall the Queen have his goods because he is Felo de se. 
t Ibid.  A man administereth of his own wrong, and after taketh letters of Administration of the Ordinary, this shall relate to the death of the intestate. 
v 9 E. 4. 33.  the heir chargeth land which is after recovered in a writ of Dower, the woman shall hold it discharged. 
w 10. H. 7. Charge 3.  Thus it is evident that the understanding of the Law worketh especially upon relations on the first causes of things reducing through many straits of colourable pretences and objections the right of a thing to him to whom it appertaineth, according to the quality and exigence of the said right and title, so that the understanding of the Student when it entereth into the survey of these intricate and hidden points, must be of this ability to compound things, and to resolve them by imagination, to build and destroy, and to turn sail by circumstances and occurrences: for there is no case which accidents may not alter, but that one thing may countervail an other, or that a defect may be supplied by enforcement of reason, or that a wrong may be purged and transformed into right, and black as it were changed into white, contrary to nature is the work of intelligence reflecting upon itself, some perhaps carry such spiced and scrupulus consciences, that they cannot abide any fiction or representation of a thing that is not in facto, but surely the supposal admittance and intendment of the Law is necessary, without which neither the science of the Law, nor any other which consist in contemplation and abstraction of the essences of things from the confusion and mixture of circumstances can be of any worth or force. And though I must confess that every thing, which is imagined to be done, and is not actually done is a fantasy, or an untruth, yet this must be granted, that, that which is not really done, and yet for avoiding inconvenience must be supposed to be done in facto is not a fault, though it be false. Many things of this kind & quality have I before immediately proposed which will be void of all effect, if you take imagination from the Law: Let it therefore be considered what this imagination is whereof we speak, that by the description thereof it may be better known. It may thus appear unto us, Fictio a supposal or admittance of a thing to be is, legis adversus veritatem in re possibili ex justa causa dispositio, the disposing of the Law against a matter of truth in a thing that is possible, grounded upon just cause: and there is great difference betwixt imagination and presumption, because fictio juris the imagination of law tantum operatur quantum veritas ipsa, in the conclusions and decisions of law, and the Law maketh sometime ens ex non ente in intelligence, though not in existence: but praesumptio stat in dubio it is doubted of, and yet it is accounted veritatis comes, the companion of truth, quatenus in contrarium nulla est probatio: And the use of supposal or fiction in the Law is only to supply that quod desideratur in facto, which is wanting in fact, ut ex ipsa produc●ntur veri i●ris effectus, that true effects and conclusions of law may proceed from it. The Logicians say that the universals are not in rerum natura, for if they were they should be monstra: for an universal man, or an universal tree comprehending in it all trees, is r●●her by understanding to be comprehended then by sense to be compassed, yet I would not have any imagination to be used: but where Equity and the orderly coherence of things doth require it.   

That the Student ought well to conceive the reason and justice of the Law in distinguishing and establishing the property and community of things.  
The seventh Chapter.  
THe end and effect of the Law is to settle the property and right of things in them to whom they belong: And to judge those things common which continuance of time and the intercourse of parties hath distributed & warranted to many, for if all things should be common, there should be nothing in order, and if nothing should be common, men would hardly be kept in duty, for than should friendship, society, and conversation, the comforts of mankind fail, which would turn the whole common weal into a wilderness: therefore the most prudent and politic Lawmakers have thought it most convenient, that betwixt these two extremities a middle & even course should be taken, whereby property might be reteigned, and yet community preserved. Plato, because once he was of opinion that all things ought to be common, hath therefore many blows of his scholar Aristotle writing against him in his politics, in which book he hath a learned difference, that all that be common 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in use but not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in possession and title, which notwithstanding is not generally and indefinitely to be admitted, because than it tendeth to the overthrow and utter subversion of all common weals: But Plato being after better advised did retractate his former opinion, and laboureth to confute it: for in his book of Laws he writeth in one place, Let every man have the free use and possession of his goods by law, whether he be citizen or stranger, 
a Plat. lib. 8. de legib.  and in an other place: The distinction of demeans, inheritances, and titles, is the foundation of all private contracts, which must be severely established by Law: therefore meum and tuum ought to be in every common weal. 
b Plat. lib. 11. de legib.  And again, Let the inheritances and properties of things be definite and certain in every common weal, and let a certain manner of purchasing them be prescribed by Law. 
c Plat. lib. 12. de ligib.  Thus it is evident that a distinct property of things is commodious and convenient for the good administration of a common weal: It is of two sorts, either an absolute and indefeasible property, or else a qualified property and sub modo. An absolute property is such which is not in any sort subject to the claim of any other: but a qualified property is that, which one man may claim after one sort, and with a certain limitation, and an other may claim after an other manner, and without limitation: As if a man do hire beasts of an other to manure his land for a certain term, he that hireth them hath a property in the beasts pro tempore, and therefore if the beasts during the term be taken away, he may have a general Replevine: 
d 42. E. 3. 18. 11. H. 4. 17. 17. E. 4. 2.  So he may have of beasts which be in his custody and were committed to his keeping: 
e 47. E. 3. 12.  And so he may have a general writ of Trespass for the taking or dryveing away of beasts in his custody, though the absolute property be in an other man: But if he which hath the very property doth take them, an action of the case will only lie 
f 48. E. 3. 20. 11. H. 4. 23.  And the Bailie of corn or money, being out of sack or bag, hath so far forth a property in the thing delivered, that if the Bailie be afterward attainted of felony, he shall forfeit the corn and the money: for it cannot be known whether they be mine or no. 
g 3. E. 3. Corone 317. 323. 334.  And the Lord may have a Replevine of the beasts of his villain, or bondman, if he have been seized of his villain. 
h 42. E. 3. 18. Na. br. Fitz. 69. 9 H. 6. 25. per Bab. 19 E. 3. Replevin 32. 33. E. 3. Rep. 43  And it appeareth by diverse books, that in an action of trespass, it is no plea to say that the property, that is the very property, is in an other. 
i 12. H. 6. 19 27. H. 8. 21.  And it is said likewise, that he out of whose possession goods are stolen, may have an Appeal: and he likewise may have an Appeal who is the very proprietary. 
k 19 E. 3. Replevin 32.  And therefore it is a firm conclusion in law, that if sheep be delivered, or leased to one for a certain time to marl his ground, the delivery or demise is a good plea in bar of an action of Trespass, or Replevine, because he hath a property modo et forma against the baylor himself, or lessour, and may have an action against him for taking them away within the time. 
l 21. H. 7. 14.   
2 And as the property of things may be particular or general, so likewise it may be joint or several: A joint property is where two or more are jointly interessed in a thing: A several property when they have several interests in several things: and therefore where the property or right in goods and chattels is joint, there the action which is brought to try the property must not be several: And therefore in a writ of Ravishment of a ward the defendant said that the plaintiff had nothing in the seygniorie but only in common with such a one, and this was held a good plea, without saying that he had nothing in the ward in severalty, or without showing how he held in common in parcenarie, or by jointenauncie. 
m 6. H. 4. 6. 12. H. 6. 4. 22. H. 6. 14. & 1. E. 4. 7.  And so if the property be several, the action must not be joint but several: And therefore if in a writ of Replevine brought by two for certain beasts, if the property of some of the beasts belong to one of them only, and the property of some of the beasts to the other, the writ shall abate. 
n 28. E. 3. 92. 3. H. 4. 12. 34. H. 6. 37. 2. E. 4. 23. 10. E. 4. 2. 8. E. 3. 15.  Thus it is evident that the Law doth maintain and uphold the joint and several property of things, without which the common weal could not consist. Now let us consider how the community of things is likewise respected by Law.  
3 A man may observe and deduce his account from former times, that it hath been thought very necessary and convenient that mutual commerce and traffic betwixt Nation and Nation should be entertained & continued: 
o Plat. lib. 12. de legib.  And therefore Plato wisely admonisheth, peregrinorum commercia respub. né aversetur: And Amásis the Egyptian king was so glad of the commerce and resort of strangers, that he granted to the Grecian merchants being mere aliens, the use and exercise of their rites and religion in their own language: And to the end that strangers might more commodiously practise their negotiation in that Realm, there was a certain place appointed in that kingdom, namely Naucrate for the receipt of foreign wares, 
p Herodot. lib. 2.  which course is greatly approved by Aristotle, whose opinion is, that a principal City must be erected in some convenient place whereto things which be necessary to this life may be abundantly conveyed, and to which there may be easy passing for them that be in league w●th us, and hard for others: 
q Arist. 5. polit. cap. 7. 6. polit. ca 7. et lib. 7. ca 4. et 5.  and therefore saith he it ought to be situate near to the sea. 
r 7. polit. cap. 5.  And doubtless just was the quarrel and complaint of the people of Megara against the Athenians, who had utterly barred and secluded them from their havens, and from all marting with them: 
s Plutarch. in Peric.  for he which breaketh and dissolveth the reciprocal intercourse of nations, is an enemy to the society of mankind. And Strabo in his last book noteth it as the property of the Barbarians, to repulse and keep out of their territories all strangers, which custom is against the Law of Nations, what a great point of inhumanity is it to deny them the sea which by nature is open to all: 
t Ulpian. lib. 8. Digestor. tit. 4. c. 14.  yea, it ought to be as common as the use of the air: 
u Celsus li. 43. Digestor. tit. 8. c. 3.  and all creatures may claim the free use of that, as may appear by that ●aying of Daedalus:  
Omnia possideat, non possidet aera Minos. 
w ovid. in Metamorph.   
Though Minos all things do possess, the air is not his own.  
And the shore of the sea is by nature common to all, as Neralius saith, 
a c. 14. tit. Digestor. de acquirend. rerum domini.  and though Empires and kingdoms be divided, yet the use of such things remaineth still in common, and therefore the saying of Maro in the person of one of his traveilers was uttered with good reason: Quod genus hoc hominum, quaeve hunc tam barbara more● permittit patria? hospitio prohibemur arenae. but yet to enemies, because in them the league of friendship doth fail, the right of fellowship should not be granted. For grossly are they deceived, who would without restraint have all things common, of which error the Anabaptists are patrons, and do endeavour to ground their error upon scripture, but falsely, for Abraham and the patriarchs were men of great riches: josua did publicly and privately distribnte his goods to the people of Israel. There be in Solomon precepts of the propriety of things. And God would not have said, Thou shalt not steal, if he would have had all things common: for to steal, is to take away goods wherein others have a property, and therefore theft is said to be contrectatio rei alienae animo furandi, invito illo cuius illa res est. 
b Stamford. fol. 24.   
3 But yet the rule of charity and society requireth that some things should be in regard of use and benefit common to other, and therefore by customs of Countries, and by law, the offspring of these customs, the earth is in part appropriated unto some, and in part participated and made common to others. Therefore the Common law doth well allow and maintain the common use of certain things, as namely, the use of Fishing in another man's Pond, 
c 18. H. 6. 29. & 92. 17. E. 4. 7. 7. H. 7. 13. 18. E. 4. 4.  of pasture for his beasts in an other man's soil, 
d 9 H. 6. 36. 27. H. 6. 10. 15. E. 3. Common. 12. 22. Assis. pl. 36. 36. Assis. pl. 3. 4. H. 6. 13. 37. H. 6. 34. 4. E. 4. 29. 10. E. 3. 15. 10. E. 3. 56. 4. E. 3. 4. 15. Assis. pl. 5. 14. E. 3. Bar. 277. 17. E. 2. Common. 23. 22. H. 6. 51.  of taking of an estover or maintenance of wood in another man's grove, 
e N. B. Quod permit. 11. Elizab. 281. Dy.  of having a franchise and liberty in an other man's Manor or signory, 
f 13. E. 45. 10. H. 7. 13. 7. E. 4. 10. 48. E. 3. 17. 30. E. 3. 20. 3. H. 6. 12. 34. H. 6. 43.  and lastly, of having a way through an other man's ground. 
g 33. H. 6. 26. 8. E. 4. 9 6. E. 3. 23. 2. E. 4. 9 20. E. 3. Admeas. 8. 21. E. 3. 2. 11. H. 4. 82. 2. H. 4. 11.   
4 Some things there are, the property whereof the law can not vest in any, and therefore it leaveth them to the occupant, that is in plain terms to him that can seize them, as things which are by nature ferae naturae, as beasts, birds, or fishes, being in their own liberty. And as to the property it is not material whether they be taken in a man's own ground, or in an other man's, and such things be his no longer than they be in his possession or custody: for when they have escaped and recovered their natural and pristinate liberty, than they cease to be his, but then the law understandeth such things to have recovered their natural liberty, when they are either past the view, or else being in view they be hard to be followed, and recovered. The nature of Bees is wild, and therefore when a swarm of them lighteth upon thy tree, they are no more thine before they be covered with thy hive, 
h justinia. lib. Institut. 2.  than hawks, which have made their nests in some of thy trees, or doves in thy dove-house for though the young birds be thine, whereof thou mayest bring an action of trespass, quare vi & armis pullos esperueriorum suorum in bosco indificantium, or columbas columbaris sui caepit, which writ is not only maintenable, when the dove-house is broken or the door open, and the young doves be taken out of their nests, but an action of trespass will also lie for the troubling or hurting of the old doves within the dove-house, though they be ferae naturae, as well as for chase & killing coneys in a man's warren, 
i 16. E. 4. 7. 22. H. 6. 6. 67. 18. E. 4. 8.  yet he shall not use this word suos, 
k 43. E. 3. 24. 12. H. 8. per Newdig. 14. Eliz. 307. Dy.  in his writ, yet because he hath them by reason of his Warren or Dove-house wherein he hath a property, he shall have an action for the chase or the taking of them. 
l 8. E. 4. 5. 22. H. 6. 55. N. B. Fitzh. en le brief de trespass.  The nature of Cranes and Doves is wild: neither is it material that by custom they are wont anolare & revolare, to fly from home, and return home. And in such things which are came, and by custom are wont to depart and yet to return, this rule is allowed, that so long they may be said to be thine, as they have animum revertendi. And felony cannot be committed in the taking of beasts that be savage, if they be savage and untamed at the time of the taking, nor for taking of Doves being out of a Dovecoate, nor for taking of Fishes being at large in the river, for such taking is not contrectatio rei alienae sed quae est nullius in bonis. 
m 18. H. 8. 2. 22. Assis. pl. 95.  And the stealing of a Do which is tame and domestical is felony, but then saith M. Stamford, it seemeth that he that stealeth it should have certain knowledge that it is tame 
n Stamf. lib. 1. c. 16.  but if the Do be killed and then stolen, this is felony. 
o 10. E. 4. 15.  And though a man may have for the taking of his Ferret an action of trespass, because he is profitable to take Coneys for the use of his master. Yet because a Ferret is ferae naturae, a man cannot have an appeal of felony for him, no more than he may have for the stealing of his Hawk and Popiniay, or such like, for such things are ferae naturae, and a man can have no property in them, neither can he say in his writ feras suas, for that implieth a contradiction, and because they are savage, therefore they are not tithable. But when such things are made came by my labour and cost, the property of them is changed, and the nature altered, and then if a man take them out of my possession, I may have an action. For a man may have an action quare molossum suum cepit, because he is necessary for the keeping of his house, or the keeping of his fold or a fish pond. 
p 12. H. 8. 3. Fillowes C. per Brooke. Pollarde. Brudnell. Newport & Newdigate.  But the nature of hens and geese is not savage, and therefore if they shall fly away, though they be passed thine eyesight, notwithstanding in what place so ever they be, they cease not to be thine: and who so ever detaineth them, is punishable by way of action. 
q justini. lib. Institution. 2.   
4 In the Civil law there is this case, certain Sheep were carried away from the Shepherd of A. by Wolves, an husbandman of the next village having pursued them with great and strong dogs which he kept for the safety of his beasts, recovered them from the Wolves, for the dogs did enforce the Wolves to leave them, and when A. did demand the Sheep, the question was whether the sheep became his that did so recover them, or remained still the sheep of A, for the dogs did get them by a kind of hunting: yet Pomponius thought in this case, that as those things which are taken either on sea, or on land, do cease to be theirs that took them, when they are come to their natural liberty, so by the same reason our goods taken away with beasts living either in the sea, or on the land, do cease to be ours when the beasts that took them have escaped our pursuit. And who will affirm that that continueth to be ours which a bird flying hither and thither, carrieth out of our barn, or out of our field, or by any means carrieth it away from us, if therefore it cease to be ours when it cometh to the mouths of beasts, in common appearance, irrecuperably, it must needs become his who first recovereth it, and so be made proper to the occupant, even as a fish, or bird, which hath escaped our power, if it be taken of an other, is straightway his, but he thinketh it more reasonable that it should continue ours, so long as it may be recovered. 
r Vlpianus lib. 19 ad edictum.   
5 Likewise a thing pro derelicto habita, waived & forsaken, is nullius in bonis, as when a man for fear of a tempest casteth his things into the sea, or some danger being imminent, leaveth them upon the land, or else of his own free will leaveth that which is his own sine spe rehabendi. 
s 29. E. 3. 29. 12. E. 4. 5.  If a thing be fallen out of a chariot or waggon, it may be said to be lost or waived. 
t Vlpia. lib. 56. ad edictum.  And if a man have a liberty to take waifs and strays in his manor by prescription, and certain beasts be wayved or do stray within the precincts of his manor, and a stranger taketh them, he that hath the manor shall not have an action of trespass general for the taking of them before he hath seized them, 
u 16. Elizab. 138. Dy.  though the law be taken to be otherwise by some. 
w ibid. & Fitzh. N. B. 19  But 13. E. 3. a writ was maintained by an Abbot by reason of his franchise in the like case, but that was an action upon the case, which proveth that the property was not in him before seizure. 
x 13. E. 3. Brief 678.  But it hath been held for clear law, that felony is not committed in the taking of treasury found, wreck of the sea, waif and stray, and such like, unless they have been before seized, and the reason is, quia dominus rerum non apparet, ideo cuius sunt incertum est, and therefore the punishment in such cases is by fine, and not by the taking away of life and member. 
y 22. Assis. pl. 99  Such lands, the property whereof hath been executed by possession, cannot be wayved but by matter of record. 
z 7. E. 4. 7. & 20.  And it is a certain rule and sound reason, that such things as cannot pass but by matter of record, cannot be wayved or relinquished, but by matter of record. 
* 8. H. 4. 13.   
6 Such things are said to be nullius in bonis, which have not from time out of mind been known to belong to any man, as treasures hid in the earth, as when any money, gold, silver, plate bullion is found in any place, and no man knoweth in whom the property is. The law bestoweth it upon the King, and it becometh res fiscalis, parcel of the treasury royal, and therefore it is called in the common law treasure troue, that is to say, treasure found, whereby it appeareth, that the King is not proprietary of it, till it be found, but it is before nullius in bonis. But if any mine of metal be found in any ground, that alway pertaineth to the Lord of the soil, except it be a mine of gold or silver, or a mine which hath veins of gold and silver, which shall alway be the Kings in whose ground soever they be found: 
a Exposit. des terms de ley, Ploughed. in le case de informat. pur mines.  and in ancient time, as M. Bracton saith, it belonged by the law of nature to him that found it: but now by the law of nations it is res fisci, and belongeth to the King: but heretofore it hath been ruled quod thesaurus non competit regi, nisi quando nemo scit quis abscondit th●saurum: 
b Fitzh. corone 446.  for then (as M. Stamford collecteth) it shall belong to him in whom the property was before, and if he die before such finding, his executors shall have it. 
c Stamf. lib. 1. cap. 42.  And because there might befall some square or variance betwixt the Lord of the soil, and the King about the property of such treasure, it is therefore decided quod thesaurus competit domino regi & non domino libertatis si non sit per verba specialia aut per praescriptionem. 
d Fitzh. corone. 281. 436.   
7 And things are said to be nullius in bonis by common consent, as things consecreate and religious: for though the goods belonging to a Church, as bells, seruicebookes, surplices, chalices, and other things, must be supposed in a writ of trespass brought by the Churchwardens to be bona parochianorum in custodia nostra existentium. 
e 8. E. 4. 6. 37. H. 6. 30. 12. H. 7. 27. 8. H. 5. 4. 11. H. 4. 12. 19 H. 6. 66.  Yet in that the law giveth the action to the Churchwardens, and to their successors, for the recovery of such goods unjustly taken, and doth give the property to the parishioners, this properly must be intended to be to the use of the church, that is, to the use of the parochians, as they are the Church: for though it be true that Rolfe saith, 8. H. 5. that a church parochial can not otherwise be intended, but a house made of stones, and walls, and roof, and such material things which can not take by gift or feoffment no more than a church conventual which lacketh a sovereign: 
f 8. H. 5. 4.  yet it cannot be denied that the parishioners are incorporate for the purchasing of personal things, and that in regard of such capacity, they may be said to be the Church itself, as well as the Parson and his successors in ancient time were said to be the Church in the purchase of land and realties, which may appear by this case: Land was devised to one for life, the remainder to an other for term of life, the remainder to the Church of S. Andrew in Holborn, this is adjudged to be a good devise, 
g 21. R. 2. Devis. 27.  and this must needs go to the Parson and his successors, because the Churchwardens and parishioners were never admitted by law to purchase land to the use of the Church. And Belknappe said, that the clothes of a dead man being found dead in the field, did belong to his executors if he had made a will, otherwise that they should be delivered to the Church for celebration of divine service for the soul of the dead: for his meaning is (as I take it) that the Ordinary should intermeddle with them for the disposing of them. 
h 48. E. 3. inditement. 27.  And if a man take a coate-armor which hangeth over a dead man's tomb in a Church, the inditement must be bona executorum, of the dead man: but if a grave-stone be taken away, the inditement must be bona ecclesiae. 
i Lambard Eirenarc. 494. 495.    

That the words or terms used in books of law ought to be understood and applied as the law doth expound and conceive them.  
The eight Chapter.  
IT is not possible for a man to be skilful in any Science, unless he do perfectly know the words which do occur and are often used in that Science. I do not mean words of Art only, which by Lexicons and explanatorie books may easily be conceived, but such as do import and concern the objects of the science, about which it is principally conversant. To pursue therefore briefly an interpretation of such words as in the law are material, I take it not to be dissonant from order to begin with the diversity of laws, and to show how these words, the law of Nature, the law of Nations, the law Civil, the common law, the statute law, the customary law ius merum, and aequum et bonum, are used in the law books, and are to be understood, that so it may be known how and in what sort one law differeth from an other, and of what quality and condition that law is to which the Student is addicted, or upon which he doth ground his reason. The law of Nature therefore is that, which the Nature of Natures, or the God of Natures of the Philosophers called Natura Naturaus, hath caught all creatures that have sense by the mediation of nature created of which they consist: for this law is grounded in the root and inward parts of Nature, and therefore one sayeth well, Habemus non scriptam sed natam legem, quam non didicimus sed hausimus: This is according to justinian his definition, in his Institutes, to whom D. Hotoman may seem at the first to do injury by objecting that by this definition, to eat, to sleep, to move, and to rest, are parcel of the law of nature: and though this be answered by some, 
a Gou. lib. 1. lect. ●ur. c. 19  that these things are excluded from the definition, by this word ius, yet what absurdity would follow if such things should be granted to be parcel of the law of Nature, why not as well as the repulsing of force, which apparently proceedeth from the law of Nature. For in truth there is no difference in the effect betwixt external force, and the force which a living creature having sense should do to itself, if it should not perform these aforesaid actions of Nature, as to eat, to sleep, to move, and to rest, whereby Nature is preserved and kept in time. This is plain in men, who by the Civil law are said to kill, in denying nourishment to themselves, or others, whereby life and nature may be maintained. And josephus writeth well, that it is against the nature of living creatures for any of them to kill itself. 
b joseph. de bell. jud. lib. 3.  But D. Hotom. doth further cavil, following his forefather Valla, that law cannot be applied to beasts, no more than injury may be done unto them. To this may be replied, that injury in some sense may be done unto them, if injury be taken for that quod inre non fit, which is not done according to that law, that is prescribed unto them by nature. But if it be done according to the rule of nature, though it differ from the nature of all other things, yet it is not injurious or unnatural, for example. All birds except the Cuckoo, do foster and bring up their young, these do it by the law of Nature, this doth it not by the law of Nature, and yet doth no injury to her young, because she doth it by the instinct and privilege of Nature. This law is of all most ancient, being connatural unto us, and following immediately and indissolubly, the very principles of Nature created, being an even levill, and most just law in itself, though wrested and corrupted by the corruption of things: but in what kind so ever it is uniformly executed, it is without all blemish of unjustice, as in mankind it is uniformly apparent, that every man is inclined by nature to provide for posterity. But when some provide too much, some too little, some with pinching from themselves, some in seeking to make their children far greater than themselves, this is not uniform, this therefore is unjust: neither do I dissent from the opinion of them that think the laws of Moses do imitate and resemble the simplicity, integrity, and uniformity of the law of Nature.  
The law of Nations is that which natural reason hath propounded and appointed in common to all men: I do not say that nature hath appointed, but nature with reason, or natural reason. And it is also severed from the law of nature, because it is appropriated only to men, yet communicated to all nations, for there is no nation which useth it not. The distinguishing of Demesues, the diversity of Realms and Kingdoms is parcel of the law of Nations. Likewise wars, contracts, and such like, are branches of that law, the definition of it may be shortly this, a law in which all Nations do consent. But this pleaseth not Bodinus, for saith he, all nations have consented to Idolatry, yet who will account that a law? 
c Bodin. lib. de Repub.  But this definition is meant of humane things, not of divine, for who will so understand it? For all the Nations of the world may not prescribe a law to God, nor capitulate any thing touching these things that concern him, he is a lawmaker for himself, and therefore hath said Quod praecipio tibi hoc tantum facito, non addas, nec minuas. 
d Deuter. 12. v. 32  But in human things that which all Nations do allow for a law that is for government and public respect (for which intent the word law is used in the definition) that is to be received and acknowledged for the law of Nations.  
The law Civil I do not take so largely as some do interpret it, to be a law which every city or people hath appropriated to itself: for though the original denomination of it came from this word City, yet by that was meant only one City where that law was practised and observed, and that was the ancient city of Rome, for which cause the Civil law is at this day called by some ius Romanum. 
e Alber. Gentil. lib. lecti. & epistolar. 2. c. 14.  And though many Cities and Commonweals be now governed by that law, yet therefore it can not be said to be ius Civil, sith it had the name before.  
The Common law is that which by common use or common reason is made, not by common assembly, as Statutes or Acts of Parliament are established: And it differeth likewise from statute laws in this, that in such laws there are many times provisoes and exceptions of certain persons. But the Common law bindeth all alike, and is not applied and used as a plaster to one part, but as a strong purgation to all the parts of the body politic, and it may challenge a third difference, for that the Common law ariseth from the people and multitude, but the Statute originally from the King, because before every Parliament, writs of summons issue from the King for preparation to that solemn meeting of the States. Again, the King may dispense with penal Statutes, 
f 34. H. 8. 52. Dy.  by clause of non obstante, but he may not alter the course of the Common law, 
g 11. H. 4. 73.  though the word of Common law extend by the generality of it, to any law that is commonly used in any place, yet use hath restrained it to the Law of this realm of England, to the dominions of which it is confined, & beyond this nest streatcheth not her feathers.  
The customary Law is nothing else but a custom long time continued, which may be thus more fully defined, Custom is a law not written, by the manners and usage of a certain people or the greater part of them upon good reason and judgement, begun, and continued, and having the force of a Law. I said (a Law not written) because the bare memory of man is the register of customs. I said by the manners and usage etc.) because no custom doth grow without the consent of certains people or the mayor part of them▪ I said (begun upon good reason and judgement) because such things as are introduced by error, are not to be observed. I said (continued) because without diuturnity of time, custom can have no force or strength. I said (having the force of Law) because it must be of equal power in the place where it is used with the Law. Acustome against the Law of nature is of no force, because naturalia sunt immutabilia; A custom against the Law of nations is of no validity, because that is grounded upon the Law of nature. A custom against the Law positive is either against publi●● utility or private profit, if it be derogatory to public utility, it is void: if it be only against private profit it is good and effectual, and a custom once disallowed and defeated by Law, cannot be recontinued or revived by any means. It hath been questioned how many Acts or deeds of men be required to bring in a custom, and the opinion of the most learned hath been, that so many acts and so notorious, that the thing which is done may be intimated into the notice of the people, so that it may seem to be allowed by the secret consent or liking of the people. But one notorious act cannot induce a custom, for that is against the name of a custom: for consuetudo is nothing else but communis assuetudo. It hath been also doubted whether an act contrary to a custom do interrupt the custom, to which it may be thus answered, either the custom was not yet perfect, and then it doth interrupt the custom, for the consent of the people did not yet evidently appear, or else it was complete and perfect, and then it cannot be defeated by one act, but by so much time and in such manner as it was induced.  
Ius merum is that Law which hath no mixture nor regard of circumstances, but groundeth a rigorous conclusion upon things done without further examination how or why they were done, as if a man sell a lease of land for years, and certain cloth for ten pound, the contract is entire, and if the title of the vendor be not good as to the lease, yet he shall have the entire sum though the vendee be dispossessed of the lease at the time of the action brought for the money, 
h 24. H. 8. Br. Contract 35. 7. H. 7. 4  because in strict reason the contract was entire, so if a man sell his own horse, and the horse of I. S. to A. for ten pound, and I. S. taketh away his horse, yet an action of debt will lie for the whole sum, because the contract was in itself entire. 
i 30. H. 8. Br. Apportion 7  But if a man retain one in service for a year, for ten pound to be paid at two feasts of the year, and the Master dieth after the first feast, and before the latter, the Servant shall have his wages but for the first Feast, because the contract was at the first time apportioned. 
k 27. E. 3. Br. Apportion 6.   
The Law which is termed aequum & bonum, is that which doth mildly interpret, amend, and mollify the hard and rigorous speeches, and censures of the other Laws: and is sometime sharp and severe, where the other Laws are remiss and connivent: as may appear by that saying of Sallust, sentencing the proceeding of the romans in a matter of estate fit reus magis aequo bonoque quam iure gentium Bomilcar comes eius qui Romam ●ide publica venerat, & this is not so much comprehended in writing, as in the true understanding of that which is written. It is necessary by the judgement of an other Law, which saith Etsi nihil facile mutandum est ex solennibus, tamen ubi aequitas evidens poscit subveniendum est. 
l l. 183. de Reg. iur.  and again justus judex aequitatem solutius sequitur. 
m l. 14. de reg. iur. § de relig.  This though it have place sometimes in the precepts, rules, and cases, of the civil and common Laws: yet it hath more affinity with the Law of nature, and the Law of nations, which are ignorant of the knots, and intricate points of these aforesaid Laws.  
Now that we have discoursed of these several Laws, it remaineth that we should show what things are the principal objects of the Law, which may be reduced to two heads, for either they are real or personal. That which is real, is either land, or that which issueth out of land: land is either firm and fixed earth, or that which is immediately and coherently annexed to the earth, as houses. By the differences of this division a pischarie or fishing is excluded, whether it be libera piscaria, that is a liberty of fishing in an other man's ponds, or waters, which he hath in common with others. For xx. persons may have a fishing after that sort in one river, and it is therefore called libera because none may disturb them to whom the fishing belongeth: 
n 17. E. 4. 7.  Or seperalis piscaria, which in our books hath several significations, for either it may signify a several fishing, which one man alone hath in an other man's soil. 
o 18. H. 6. 29.  Or else where a man hath a several fishing to himself in his own ground, and so it is a thing compounded of water and of earth, and therefore it is said, that where a grant is made of a stagne or piscary, the land passeth. 
p 4. E. 3. 3. Feoffemr 79  And in a Formedon brought of a gorse, which in Latin is called gurges, a gulf or drepe▪ Yarmouth, wherein fishes are commonly taken, the demandant shall recover the land and soil itself. 
q 14. E. 3. Formedon 34.  And it hath been adjudged that a fishing so taken lieth in Tenure. 
r 40. E. 3. 44  And a writ of Aiell was brought of a fishing as a thing lying in demesne. 
s 20. E. 3. Bre 685  And also of a stagne or pool: 
t Temps E. 1. Brief 861  But it cannot be termed land, because the water is not coherently fired to the soil, but otherwise it is of an acre of land which is covered with water: for though that be overflowed with water, yet it is not naturally overflowed, as a pond or fishe-poole is. 
v 18. E. 4. 4  And therefore it is said 12. H. 7. that a man may have a Praecipe de una acra terrae cum aqua cooperta, or de una acraterrae generally at his election. 
w 12. H. 7. 4  But a tenement cannot be said to be freehold, except it touch the earth, and therefore a chamber built upon a hallor parlour, cannot be said to be freehold, because it cannot be perpetual, for the foundation may perish, and for that cause it cannot be demanded by plaint or Writ. 
a 3. H. 6. 1. Plaint 1●.  Yet 9 E. 4. an exchange was made of land for a chamber, 
b 9 E. 4. 40.  but that proveth it not to be freehold, for an exchange may be of things of divers natures, as of land for rent. 
c 3. E. 4. 10.  And so of a rent for a common. 
d 9 E. 4. 21.  A Castle whether it be a thing either of itself, or parcel of a signory or Manor may well be called land or freehold. 
e 7. H. 6. 36.  For though land may not be parcel of land no more than one Leete or Hundred may be parcel of an other. 
f 3. Mar. 1. Come 168. Hills cas. 7. E. 6 Come 80. Pa●●idg. cas. 23. H. 8. Br. 〈◊〉. 53.  Yet land may be parcel of a Manor. 
g 4. E. 4. 16. 42. E. 3. 22. 44 E. 3. 40. Feoff. 53. lib. ●undam. leg. fo. 70.  And a park may be parcel of a Manor. 
h 3. E. 3. Br. Iurisd. 39  And land may be parcel of an Honor. 
i 26. Ass. pl. 60.  And of a Castle. 
k 4. E. 4. 17.   
It is now showed what may properly be called Land, and it is not impertment to declare how many sorts of land, which we have before called firm ground, may be demanded by Law, of which the Law hath a several contemplation. Land therefore as it is subject to the consideration of Law is sixefold, Arua, Florida, consita, compascua mineralis, in frugifera. Arua is the arable ground which is tilled with the Plough. Florida, the garden ground, which procreateth flowers, Herbs, & all such things as the Bee doth feed upon. Consita, is the woody ground which is thoroughly replenished, with trees, plants, shrubs, and such like. Compascua is that which bringeth forth grass and fodder. Mineralis is that, wherein mines are contained whether they be regal mines, as mines of Gold or Silver, or base mines, as brass, lead, copper, tin, coals, or the like. Infrugifera is that which is barren, and cannot be helped by manurance as the soil where rushes, weeds, fern, and such things do grow, and it is good to know the diversity of these several sorts of ground, that when such things are to be demanded by writ, they may be demanded by their proper names and kinds, and therefore if a feoffment be made of two roods of land, and after a house is built there upon, and part of it is become meadow, parcel pasture ground, and parcel wood, the demand must be by the name of a house, meadow, pasture, and wood, 
l 3. H. 6. 8.  and there is a writ in the Register, de minera plumbi & cuiuscunque generis metalli cum pertinentijs. 
m Regist. 165  and ruscaria the soil where rushes do grow must be demanded by number of acres. 
n 16. Ass. pl. 9  And where a stagne hath been, or land covered with water, if the water be turned out of the course or dried, the land may be demanded by the name of meadow. 
o 33. E. 3. Entre 80.   
That which issueth out of land, or the profits of land are of three sorts, Natural, Industriall, and Artificial. The Natural profits of land are such as do rise by the force and benefit of Nature principally, and not by the diligence and labour of man, as apples, herbs, trees, and such like. Industriall profits are such as do principally require the diligence and culture of man, which unless it be continually applied, natura nihil operatur, as corn, hops, woad, saffron, and such like. Artificial profits are these, which are reserved, granted or issuing out of land by the Act of man, and the approbation of Law, as a common of pasture, a warren, a rent, and things of like sort. Common of pasture is of four sorts appendent which is belonging only to arable ground, or to land that consisteth as well of arable ground, as of other things, as a Manor or measuage, but the appendancy doth principally grow by reason of the arable, and therefore it belongeth to such beasts only as do manure or marl the ground, as horses, oxen, kine, and sheep. 
p 37. H. 6. 34  And if a man have common to certain arable lands in one Village, he cannot use the Common with beasts that manure his arable in an other Village. 
q 10. E. 3. 56  And this aught to be intended of ancient arable ground, not of land newly improved. 
r 10. E. 2. Common 22. 5. Ass. pl' 2.  For continuance of time immemorial maketh the appendancy, wherefore if the arable land to which common is appendent, do by purchase come into the possession of the owner of the soil, in which the common is to be taken, the common is extinguished in his person: But if after the tenements be severed by alienation as they were before, the common is revived by some authority, 
s 4. E. 3. 45. 17. E. 2. Common 23.  because the same ancient arable land to which before it belonged still continueth: But by some it is otherwise, because being once extinguished it cannot be de novo and in an instant made appendent. 
t 14. H. 4. 2.   
Common appurtenant is where a man prescribeth to have common of pasture belonging to his land with all manner of beasts, it differeth from a common appendent in this, that a common appendent is only to be taken by such beasts as manure or marl the ground, and by such number of beasts as will serve to manure or marl the ground, to which the common may be claimed, and belongeth only to them as long as they are demurrant upon the land: But a common appurtenant may be taken by all manner of beasts. 
a 37. H. 6. 34. 9 E. 4. 3.  Likewise a common appendent must be only claimed by reason of land which may be marled or manured: but a common appurtenant may be claimed by reason of a mesuage or house. 
b 22. H. 6. 43. 4. E. 4. 29.  Furthermore a common appendent groweth only by continuance of tune, and the essence of it is prescription joined with appendancie, 
c 26. H. 8. 4. 5. H. 7. 7. 4. H. 6. 13.  But a common appurtenant may be granted at this day, and springeth up in an instant. 
d 26. H. 8. 4. 15. Assis. pl. 5. Common 13.  And a common appendent can not be severed from the land to which it belongeth: 
e 5. H. 7. 7.  But a common appurtenant may be severed: 
f 26. H. 8. 4.  And they differ in this, that a common appendent must be used and taken, according to the rate and quantity of ground, in regard of which it is granted or claimed. 
g 15. Assis. pl. 5.  But a common appurtenant may be claimed for beasts sans number: for by the opinion of Monbray none shall have a writ of Admeasurement of pasture, but he that hath a common appendent: 
h 18. E. 3. 30.  So that it may be probably collected, that a common appurtenant because it cannot be admeasured, may be well enough sans number: And it may be likewise to a certain number of beasts, for if a man at this day will grant one a mesuage with a common appurtenant for ten beasts, I doubt not, but this is a good common appurtenant to the mesuage.  
Common by vicinage is where two townships or more do entercommon, and have entercommoned from time out of mind, which is not to be used, by putting the beasts of the inhabitants of one town, into the lands of the inhabitants of an other town, for so they may be distrained damage pheasant: But they must put them in their own fields, & if they stray into the fields of the other village, they must suffer them to be there, and they must put in their beasts, having regard to the freehold of the inhabitants of that village where the common is to be used. 
i 13. H. 7. 13. 15. Elizab. 316. Dyer. 16. E. 3. Common 9 22. H 6. 51. 6. E. 6. 70. Dier.  This kind of common Mast. Littleton maketh appendent, 
k 7. E. 4. 26.  but by other authority it is a feveral and distince kind of common.  
Common in gross is where a man claimeth to have common for all manner of beasts, whether the number be certain or uncertain by special grant in writing, or by prescription in him that claimeth or his ancestors, or they whose estate he hath not by reason of any particular land: & this common may be used by the beasts of a stranger, which the proprietary of the common may giest, as we term it. 
m 11. H. 6. per Babing. Mart. & Paston. 45. E. 3. 25. Assize 61. 36. Ass. pl. 3. 15. Ass. pl. 5. Perkins tit. grants.   
A Warren is a profit likewise which may be taken out of other men's ground by prescription, 
n 30. H. 6. 28. Dyer.  and if the owner of the soil 〈◊〉 any one by his commandment; or as his servant do come upon the soil, and do ●hase the Coneys, he cannot justify the chase, 
o 34. H. 6. 43.  though he may justify his entry into the ground. 
p 3. H. 6. 12.  And a rent is also a profit issuing out of the soil of a stranger, and savoureth of the nature of the land; out of which it issueth & therefore if rend issue out of land in ancient demesne, it is ancient demeshe, & so it is of rent granted out of land in Gavelkind, it shallbe divided as the land itself: 
q 4. E. 3. 53. 14. H. 8. 5.  And so it is of rent granted out of land devisable by custom, though the rent be granted but of late time. 
r 22. Ass. pl. 78.  And so if rend be receivable out of customary land, as borough English, or where dower is to be had of the half part, and such like, the rent shall be of the custom and nature of the land, and therefore in the demand of such rent by Praecipe, or in a Replevin, the tenure by ancient demesne of the land is a good plea. 
s 14. H. 8. 5.  And so if land in tail be divided amongst parceners, the 〈◊〉 reserved to one of the 〈◊〉 parceners shall be in 〈◊〉, and of the same condition as the land was. 
t 2. H. 7. 5. 15. H. 7. 14.   
parsonal things 〈◊〉 things either in possession, or in action: Things in possession are either goods or chattels: the name of goods is natural and civil, by the natural signification all such things are comprehended under the name of goods, which may profit. 
u 1. 49. de verb. signific.  But as the name of goods is taken civilly, it stretcheth to the whole he ape and body of a man's wealth, together with the charge and deductions: the reason of this differenceis because nature conside●●● things as 〈◊〉 they are: but a common weal or city after such sort as is most expedient 
a Alber. Gentil. lib. 4. Epist. c. 7.  And though the charge which followeth goods do degrace somewhat from the value and estimation of the same, yet because it is to be discharged and satisfied out of the goods, it is therefore jointly reckoned and considered with the goods themselves.  
Chattels which in the common Law are termed Catalla, are diversly taken, for the profits of land if they be given generally unto the King by act of law, they may be called Chattels, and therefore the profits and issues of the lands and 〈◊〉 of them which fly for felony are forfeited unto the King, until such time as they be acquitted, and that by the Statute of Praetog. cap. 10. which saith that the King shall have omnia Catalla talium fugitivorum, and under the word Catalla is comprehended the corn which was growing upon the land, at the time when the forfeiture of the goods did begin to take place, 
b 3. E. 3. Corone 3. 4.  And if a man be outlawed in an action of debt, and the outlawry be returned, so that the writ issueth to the Escheator to seize the goods, chattels, and land of the party outlawed, the issues of the land shall be taken to the kings use until he have sued his Charter of pardon: 
c 8. R. 2. Supersedeas 19  for an outlawed person shall not forfeit any land, but the profits only, as rend and corn, if he be outlawed in a personal action: Otherwise it is if he be outlawed of felony, for then the King shall have the escheat of the land, or the Annum, diem, & vastum. 
d 9 H. 6. 20.  But if the profits of land be generally granted by the act of the party, than they are the substance of the land and do not pass without livery: And if a man grant the profits of land, the land itself passeth. 
e 14. H. 8. 5. 45. E. 3. 90. 4. Elizab. 210. Dyer.  And therefore it hath been held by Fortescue and Danby justices, that tenant in fee simple may grant vesturam terrae, and the grantee shall have it after his death: But the tenant in tail, for life, tenant in dower, and tenant by the courtesy cannot make any such grant, but if they die the grant is determined. 
f 37. H. 6. 30.  And if a feoffment be made of land upon condition that neither the feoffee nor his heirs shall take the profits, the condition is void, and the feoffment simple and absolute, 
g 21. H. 7. 24.  and in such cases the profits of land may not be termed Catalla, no more than the lands themselves: But under the word Chattels, a lease for term of years is comprised. 
h 39 H. 6. 35.  And likewise a right of action for goods: as if goods be taken wrongfully from a fellow: 
i 6. H. 7. 9  Or when one is indebted to a fellow by bond: 
k 19 H. 6. 47.  Or when he is accountable to a fellow by reason of any receipt, or otherwise. 
l 28. E. 3. 92. et 50.   
Things in action are such in which a man hath neither property nor possession: as if a man do owe to an other xx. pound upon a writing obligatory, though he have a property and possession in the 
m 1. H. 7. 15.  writing or charter, yet the sum contained is a thing in action, in which he hath neither property nor possession: and so it is of an Aduowson when the church is void of an incumbent: for the patron can not grant it to any other, because than he should grant but fructum advocationis, which is a thing rather imagined by law, then subsistent by nature: and therefore the patron can not truly be said to have property or possession in it. But though such things be to some intent merely in action, yet in some cases they are taken as things vested: and therefore if a man be seized of an Aduowson, and the church become void and he dieth, his executors shall present, and not the heir, 
n Fitz. Na. br. 34.  for the advowson in regard of the executors was a chattel vested in the testator. The King may grant things in action, 
o 2. H. 7. 8.  and so may a common person in some cases: As if a man bring an action of debt against I. N. and the plaintiff is indebted to me, and promiseth me that if I will aid him against I. N. that I shall be paid out of the sum in demand: there it is lawful for me to aid and maintain the plaintifie against I. N, because by the promise I have interest in the sum demanded. 
p 15. H. 7. 2.  And where a man is indebted to me in xx. pound, and an other oweth him xx. pound by obligation, he may assign this obligation and debt to me in satisfaction: And I may maintain suit for it in the name of the other.  

A Table of certain words in the Interpretation whereof the Common Law of this Realm and the Civil Law do seem to agree.  

A.  
ACcusatio A bill of presentment, is a regular form of complaint, whereby offences, are opened and punished.  
Acquisitum purchased, that is said to be whereof the property is translated from one to an other.  
Affines are the kinsmen of the husband and the wife by marriage, so called, because two Kindred's which are diverse one from the other, are coupled by marriage, and one of them cometh to the borders or marches of the other kindred.  
Ad nos pertinere is said that which doth belong unto us, either by way of property, or by way of possession, or by charge, or by administration.  
Aedes, plural: a house consisting of diverse rooms, (for domus may consist only of foundation, wall, cover) as the integral parts, or as some briefly say, which consisteth of soil and superficies,  
Aestas summer, a part of the year, which beginneth at the equinoctial of the spring, and endeth at the equinoctial of Autumn, and so summer & winter are divided by vi. months.  
Annona victual, is not referred only to corn, but to the meat of the shambles, as well to fish as flesh.  
Aperta vis, open force, which is manifest and evident, and doth not receive any excuse of simplicity.  
Arborvento deiecta, hath not now the name of a tree, but the name of wood. Arbour dum crescit, lignum cum crescere nescit.  
Area, a floor is a vacant place, therefore called Area quasi exaruerit, and were not able to bring forth any thing, it hath been taken to be such an empty place as doth lie discovered, locus ab aedificio purus, and hath no superficies: it is called a plot of ground, court or yard.  
Argen●um silver, it is of three sorts, infectum, factum, signatum. Infectum is that which is unpollished and not adorned with any particular form being in the ore, or bullion, newly severed and singled from the ore. Factum, is that which is beautified with some particular form, of which kind is a silver cup, a silver goblet, a silver bowl, or a silver mazzard. Signatum is that which beareth some special Image or impression, & such is the silver that is coined & accounted currant, Argentum factum must be described by the kind or shape, Infectum by the weight, Signatum by the number.  
Arrestare, is by the authority or warrant of the law, to hinder that either a man or his goods be at his own liberty, until the law be satisfied.  
Artifices, artificers, are they which sell things laboured by them, and by their labour reduced into a particular form, as Shoemakers, Smiths, glovers, Tailors and Weavers, but artificium if it be largely taken, extendeth to the knowledge of every art: artifex and opifex differ, for in the one there is labour and judgement, in the other labour only.  
Assultus, an assault is a violence done to a man's person, by the person of an other man.   

B.  
Bona fides a sincere conscience, excusing one of ill meaning.   

C.  
Carcer is taken two ways, for it is either locus custodiae, or locus paenae.  
Cavillatio when a man turneth his speech ab evidenter veris, ad evidenter falsa.  
Cella because there we do celare, we do hide that which we would keep secret or close.  
Civitas, a city: it is taken materially, and formally: being understood materially, it doth signify a multitude of houses made of stone and timber, being formally taken it is civilis societas quasi societas simul vivens, and not vivens simply, but vivens bene, for as Cicero saith, civitas sine legibus is corpus sine anima, and therefore Aristotle saith, non concedimus ut homo imperet sed ratio.  
Cliens, is he that is in suit, so called quasi colens, and he who dealeth for him in the cause is called patronus, quasi pater.  
Codicillus, the declaration of a man's last will, which without the just solemnity of a testament a man ob impedimenti necessitatem is enforced to write, but now the use of codicils or testaments are without any necessity confounded, which is contrary to law, for a ●odicill aught to serve necessity, & not a rash onset.  
Cognatio kindred, it is divided into three parts; 1. into parents, 2. into children, 3. into cousins. Parents are they of whom we are begotten, as father, mother, grandfather, grandmother, and these which are in degree above them. Children are they which are begotten of our bodies, as son, daughter, grandchild, and such as he underneath them, Et nati natorum et qui nascentur ab illis. Cousin's are they which have neither begotten us, nor been begotten of us, but have a common root and original with us, as brother, sister, uncle, aunt, and such as do descend from them.  
Colludere, is in fraudem tertij convenire.  
Commenda, the custody of a Church committed and commended to some.  
Commodare is to grant the use of some thing for a certain time, there is difference betwixt commodare & mutuo dare, because commodare is to lend, to have the same again, as books, apparel, and such like, but mutuo dare is to trust, hoping to have the like again, as money, corn, salt, spices, and such like.  
Compromissum, is the power that is given to the arbitrator, so called because both the parties do promise to obey the opinion of the judge, & therefore he is called compromissarius index to whom the matter is referred.  
Communitas, a commonalty, is societas hominum communi lege viventium.  
Conditio, when a thing dependeth super casum incertum which may tend either ad esse or ad non esse.  
Confessio, is double: either judicial, or extraiudicial, judicial is that which is done before the judge, extraiudicial which is done in presence of good and honest men.  
Consentire, is to meet in one opinion.  
Constitutiones, judgements, rules and awardes concerning several matters whereupon this verse hath been made.  
Quatuor ex verbis virtutem collige legis,  
Permittit, punit, imperat, atque vetat.  
Controversum ius, is that which is on both sides doubtful: certum ius is that which is certainly determined & is called positive Law.  
Copulativa the conjunction copulative is taken after two sorts, either in a divided sense, or in a compounded sense, in a divided sense as when I say, Sir Robert Book, and Sir james Dyer were Lord chief, justices of the Common pleas, for they were not chief justices together, but at diverse times: in a compounded sense, as when I say two & three do make five.   

D.  
Debito is he of whom we may against his will exact money.  
Decimae are of three sorts praediales, personales, and mixed praediales are they which arise of farms or lands, as corn, hay, and the fruits of trees: personal which are due by personal labour, as by some trade, traffic, or mystery, mixed of which it may be doubted whether they be predial or personal as wool, lamb, milk etc.  
Defensio, is the avoiding of a surmised & pretended offence.  
Delegatus a delegate, to whom a cause is committed to be determined and ordered.  
De plano, vel sine figura judicij, vel summary.  
Deprehendere, is to take a man in ipso facto, so that he can never fly, nor deny the fact.  
Discendere to descend or to spring of ones body, hereupon they which are borne of us are called by the name of discendents, which with them that ascend make the right line, and the ascendants and discendents cannot marry together, wherefore if Adam were now living he could not marry a wife.  
Dicecesis, the government of a certain province by the Bishop, for as a territory is so called, quatenus judex ius terrendi habet, so a diocese as far as a Bishop hath ius administrandi sacra.  
Dispensatio, a release of common right, either ex causa utilitatis, necessitatis, or ingentis praerogativae meritorum.  
Diversa, such things whose subject is not alike, or whose definition is not alike.  
Dominium is a right to dispose perfectly de re corporali.  
Domus instructa, a house furnished, if a man devise such a house the household stuff passeth, but not the wine that is within the house, because by common intendment a house is not furnished by wine.  
Dubia causa, is that which is but semiplene probata.   

E.  
Error, an opinion, whereby that is approved and allowed to be true which is false, and that to be false which is true, and error may be two ways, either in iure constituto, or else in iure quod quis in suo habet negotio, the one is an error in law, the other in facto.  
Euanescit actio, the action doth fail, or abate, evanescit actio, by the power of the law, or of the judges, remittitur actio, by the will of the plaintiff.  
Executor, an executor, which is after three sorts, executor testamentarius, executor legalis, that is to say the ordinary, executor datiws, the administrator.  
Election, is the certainty of our will, it may be of persons, or of things, places, or times: Of things, as if a man should pay a sum of money, or else a horse or a hawk: Or of persons, as if he should pay it to I. S. or to I. N. Or of places, as if he should pay it at London, or at Lincoln. Or of the time, as the first day of April, or the second day of May.   

F.  
Falsitas, falsehood is immutatio veritatis cum doto & damno alterius, the change of truth with falsehood to the deceiving and endamaging of an other man.  
Fama, is a common report proceeding from suspicion, and published by the voices of men, and it differeth from rumour, because that is a diverse whispering of men, which is not so effectual as Fame. Fama constans is that which is dispersed abroad neither by men unknown, nor of light credit, nec ignotis nec improbis.  
Fide●●●●● is he which bindeth himself for another, quasi inssu alterius ponens fidem suam.  
Fortuitus casus, a mere chance which by man's counsel, care, and diligence can neither praevideri or praecaveri, be foreseen or foreclosed.   

G.  
Generalis lex, a general law which comprehendeth all cases, except such as be unlawful, and unjust. For there is nothing more absurd then to draw a just Law to an unjust interpretation.  
Germani fratres are they which are of the same Father & Mother, Consanguinei which have the same Father, but not the same Mother, Vterini which have the same Mother, but not the same Father.  
Gestores negotionun, factors or procurators be of three sorts, voluntarij which gratis and of their own accord do regard the business of their friend: Necessarij which by obligation of their office do follow matters: Quasi necessarij, which have some colour to deal in matters.  
Graeca mercari fide. i. pecunia numerata with money paid in hand.   

I.  
Illegitimi bastards, whereof there be three sorts, Incestuosis which be begotten of kinsmen and kinswomen within the degrees prohibited: Nefarij, which are begotten of descendants, the children of the same parent: Spurij, or Adulterini, which are borne in adultery.  
Iniuria whatsoever is done against law and right, whether by words, as by slander: or by deed, as by violence of hand.  
Inops sine open without help, which hath no wealth nor maintenance, whereby he may help himself.  
Instaurare, is to bring a thing into his former estate.  
Insula, a plot of ground compassed on all sides with the sea, quasi in fato posita, it is of two sorts: Perpetua, and Nativa. Perpetua, which hath been from time out of mind part of a Province: Nativa, which hath been lately discovered by the ebb and drought of waters.  
Interlocutoria sententia, which doth not define or determine the controversy, for that is called sententia definitiva: an Award.  
judex limitaneus, which hath a limited inrisdiction, as the Lord in Court Baron who only holdeth plea of a sum under xl. shillings, and within the precinct of his Manor.  
juramentum an oath, it is the affirming or denying of a thing with religious assertion, or attestation, and it is double: Extraiudicial or judicial. Extraiudicial, as juramentum conventionale, when upon a bargain one doth swear to an other. judicial is of two sorts, Necessarium, & Suppletiu●m: Necessarium, which is ad litem aestimandam, when witnesses are produced by the parties. Suppletiwm, when the judge doth enforce the party himself to swear for want of other proofs.  
Inseperabile, that is said to be which is so inherent in the subject, that it cannot be removed, but they do either stand together or fall together. A thing may be said to be individual or inseparable in many respects, 1. according to the form required in the act: And therefore if three be bound jointly, they must be sued jointly, 2. by reason of necessary depending, and therefore the principal being defeated, the accessory is also destroyed, because it cleaveth inseparably unto the principal: and therefore if the marriage be not lawful, the endowment cannot be lawful, 3. by the meaning of the parties: as when a submission is made to two arbitrators, it is not to be imagined that the parties had an intent of severance, 4. by the nature of the thing: as when a thing will not suffer a partition: as a signory in gross, a common, a condition, and so a jurisdiction is an entire thing: and therefore if a man will bring an action in a base Court of a debt of 4. li. it is not good for thirty shillings, or a less sum: for a judge or officer hath a precise power of the Law, and if he pass his jurisdiction, his sentence or act is void.  
Integrum is that which is compounded of diverse parts, for parts compacted & joined together do make the whole, but an entire thing may be diversly: for it may be either totum numerale consisting of many numbers linked together, 2. totum universal, as the general nature whereof the particulars are comprehended: as homo of animal, avis of brutum, 3. totum integrale which is made whole and entire by many parts, and it is of two sorts, Heterogeneun, and Homogeneum: Heterogeneum the parts whereof are not of the nature of the whole thing, as a house which doth consist of soil, stone, wood, mortar, & cover. Homogeneum which is of the same nature with the whole, as water, fire, earth, whereof every part hath the name of the whole.   

L.  
Lacus is that which hath perpetuam aquam. Stagnum that which hath water at sometime, and is sometime dry. Fossa a receptacle for water made by man's hand.  
Lana, wool, which may be cloth, but yet is not wrought in cloth. And if a man by his will do devise his wool to any, be it wrought or not wrought, died or not died▪ or be it spun, it is comprised under the name of wool, and it is called by the name of Volley until it be made cloth.  
Littus, that place to which the greatest flood of the sea do●h come.   

M.  
Maiestas, a sovereign honour: Majesty is said to be the daughter of honour & reverence.  
Marinum et Maritinum do thus differ, Marinum is that quod Mare incolit, which liveth in the Sea, or which is bred in the sea, Maritinum quod Mare accolit, which is adjoining, or adjacent unto the sea.  
Mercator, a Merchant, is not as some think termed a Merce, but of the word Mercor, which signifieth to buy, and they are properly termed Mercatores, qui res emunt quas in eadem specie cariús vendant.  
Moneta, à monendo, Money, so termed, because by the impression of the stamp it doth give us notice, either of the prince whose it is, or the price which it beareth: It taketh Legem valoris, the rule of the value of the superior, & therefore it cannot be abased or refused, but by the commandment of the superior.  
Mortua res, that is said to be by which a man is not richer.  
Motu proprio, ex certa●scientia, de plenitudine potestatis, are praegnantes clausulae, clauses of importance, against which none may be heard.  
Mutuum, quasi ex meo ●●uum.   

N.  
Narratio, a declaration of a matter either o'er tenus▪ or in form of law: If it be o'er tenus, it is called a motion, & thereof it is said, qui bene narrat, bene impetrat: If it be in form of law, it is a declaration grounded upon a writ, containing the whole state of the matter, as the plaintiff supposeth it.  
Naturaliter possidere he is said, which possesseth a thing corporally, & taketh the profits of the thing possessed, and this of the common Lawyers is called possessio in facto: But if a man's father die seized, & the son doth not enter, nor actually take the profits, neither doth any other disturb him to take possession, this is called a possession in law, or eivilis possessio.  
Negotium meum, that is said to be, cuius ●●erum & damnum ad me pertinet.   

O.  
Obuentio is a kind of revenue: it differeth from Reditus, being strictly taken, in this, that obuentiones are conting entium▪ reditus certorun.  
Oculis res subijci dicitur when it is plain & manifest, it is well said of Erasmus, ad cognitionem magis faciuntaures, ad fidem faciendam certiores sunt oculi.  
Officialis, an Official, who in a certain part of the diocese is the Bishop's deputy.  
Opera labour, it is double, Officialis, and Artificialis: Officialis, is that which is spent & bestowed upon the diligent attendance done by the servant to the Master. Artificialis, is the labour of the trade, as Printing, paveing, feeling, graveing, embrodering, & such like.   

P.  
Pactum is the consent of two or more in a matter which pleaseth both parties, Pollicitatio is when there is not the consent of two, but only one agreeth. Pactio nuptialis is a Matrimonial contract. Pactum retrovendendi is when the vendee covenanteth, that if the vendor or his heirs or executors will within a certain time pay so much money, as the vendee doth pay, that then he shall have the land again, and be in his former estate.  
Palam fa●tum is that which is done openly. Publice factum is that which is done coram populo.  
Paries, a wall▪ thereof there be diverse kinds: Lateritius which is made of clay, Testaceus which is made of brick, Coementar●us which is made of lime, stone, and water mingled together, Cratitius which is made of wood, boards, or boughs, plaited together.  
Paraecoes, a parishioner, an inhabitant in a certain place, who hath brought his household to a certain place, to reside there.  
Praetor mayor, he Mayor of a city, as Rhodiginus saith: for others are called Praetores minores.  
Privilegium is in's ●singulare, whereby a private man, or a particular Corporation is exempted from the rigour of common Law, for that which is now called proprium, hath been called of old writers priwm.  
Proprium that which doth so belong to one that it is not common to an other, & though that wherein we have a joint property with others may be called nostrum: yet it cannot be called proprium, for proprium doth not admit any communion, but proprium & suum be equipollent, and of the same sense.  
Puer hath three significations, either it signifieth the estate of a man: as when we call servants pueros: Secondly the sex, as when we call a male child puerum: Or else the age, as when we call one that is young puerum.  
Pars is that whereby the whole is supported, it is either pars divisa, or pars indivisa, this division will hold both in nature & Law: In nature that it a divided part, which consisteth of diverse parcels: as the wing of a bird, or the cloven hoof of a beast, or the fin of a fish are said to be parts divided: In law there is also a divided part, as the third part whereof a woman is endowed after the death of her husband, & after the assignment made, and the third part of the land of the tenant in Capite, which the king hath after his death: Likewise the parts of a manor divided by parceners: A part undivided is manifest to the understanding & to the eye: to the understanding, as the moiety or third part of jointenants, parceners, tenants in common, before partition: to the eye, as the uncloven hoof of a beast, or the parts of the earth cleaving contumately together.   

R.  
Ripa, a bank, it is proper to a flood, as the shore is to the sea. Ripa is that which doth flumen continere, stay the natural force of his course, and that is said to be a bank, quae plenissimum flumen continet, which stayeth the water, when it is at the highest.   

S.  
Sequestratio is either a separation, by way of compounding, or by interdiction of possession: It is voluntaria, or necessaria, Voluntaria, when it is done by the consent of the parties, Necessaria, whe● it is done by one that hath a competent authority to sequester.  
Sylva caedua, which being cut may grow again.   

T.  
Tugurium, quasi ●egurium, it is taken of some for every country house, but not rightly, for the house which doth consist of walls and tiles or brick is no cottage, but a cottage is that which doth principally consist of reeds or thatch or sods, earth and twigs laid together, and compacted by clay or slime, or which hath in it a very small deal of timber.  
Tumultus is taken for every perilous commotion, if it be publicly and hastily done.  
Turba, a multitude, consisting at the least of the number of ten.   

V.  
Vacillaus testis, which doth give an inconstant and diverse testimony.  
Vagabundus, which hath neither certain house, nor steadfast habitation, a man, as one termeth him, sine re, sine spe, sine fide, sine sede.  
Vel, a particle, it doth not always disjoin, but sometimes explain.  
Vis force or violence: it is of divers sorts, vis detractiva, when a man taketh a thing from one against his will: vis compulsiva, when I compel a man to assent to a certain act, vis divina, commonly called vis maior, whereof there is no resistance: vis expulsiva, which is done with weapon, and it is called of some vis armata, vis inquietativa, when I am disseised by force, vis imminens the striking or assault of a man. Vis is not verbis, but facto, for he is not said vim pati, which is only touched by words.  
universal quod ad universos pertinet.     

What method is to be used in handling and disposing matters of Law.  
The ninth Chapter.  
OF method it were better to write nothing then little, for so many diverse methods are proposed by many divers authors, that plenty breedeth scarcity, and a man can hardly tell which to choose. Curiosity as in all other things it is vain, so in method it is necessary. For to proceed without equality of tenor is negligence, and to observe method unartificially is ignorance. They that give a reason of the beginning, continuance, and ending of their tractates and discourses, are without doubt the most judicial and most plausible methodistes: or they which so temper and moderate the course of matters, that though they render not a precise reason of their doings: yet it is apparent to the reason and understanding of others. A twofold method is very much talked of, and that is by proceeding either a singularibus ad universalia or ab universalibus ad singularia, the one of these I account no method at all, howsoever it hath usurped the name, being but a natural discerning of things done in facto by the ordinary direction of the senses, and making thereof a general conclusion, which is easy and familiar to every man's capacity, so that the praise of that action is diligence and not art, for is it any difficult thing to reason and conclude, wood is heavy, stone is heavy, iron is heavy, & sic in caeteris: therefore all things made of earth are heavy? how pro●e and ready is the perceiving of these particulars to every man's sense? and how easily may the conclusion be framed by his understanding? but in deed the discoursing from universalles to particulars is more hard, more artificial, more compendious, for it is done in less compass and fewer words, which is a great argument of a good method, and therefore I do not agree to Aristotle that Athenian Doctor, when he saith, Ars tum existit, cum ex multis experientiae notionibus vna● quae ad universum genus accommodetur nascitur praeceptio. 
a Me●aphys. 1▪ c. 1.  Unless he mean it of vulgar and mechanical trades and occupations, whereof only I admit it to be true, but I rather approve that which he saith, and doth likewise: progrediendum est ab universalibus ad singularia. 
b Physicor. 1. c. 1.  But there be some which will not allow any discourse but that which is furnished with mathematical and demonstrative reasons. Some would have every thing handled by examples, as Ramus, a man happier in writing, then in reproving one that writ better than he: who in handling Logical places, doth illustrate them with many examples, but with never a rule. What manner of teaching is this, to show unto thee that others did thus: but not to show why they did so: which default is for want of rules, in which the reason and knowledge of doing things aright is contained. A man cannot make a shoe by a number of lasts, but he must have instruction of one that is skilful in the trade. Some again will have every thing confirmed by the authorities and testimonies of them that be learned, thinking that only to be the fit way of teaching. But the certain and necessary reasons of the Mathematics, are not in all arts to be required. 
c Arist. Metaphys. 1. part. poster. c. 3.  Neither is there an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or accurate kind of handling things in all sciences alike to be used and observed: but in every science things are so to be ordered and digested, as the subject or matter doth require where about it is employed, and so far forth as may be agreeable to the profession of the science. For a Geometrician and a Carpenter do diversly handle and use a right line, the one, as it may be profitable to his work which he carveth, the other searcheth what kind of thing it is, and of what nature and so other sciences must be ruled by the subject which they contemplate, lest there be more 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in them: neither is a cause or reason to be exacted in all things, for of many it is sufficient to have this knowledge quòd ita sunt, though we cannot know propter quod ita sunt, as of principles which are the first and highest rules in arts and sciences, and therefore no reason can be yielded, because they are prima, the very first in the discourse of reason, and therefore 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for themselves to be believed▪ Surely Method is so convenient a thing in the study of the law, that without it neither can the understanding be well taught, nor the memory well directed. It is not enough to have a great heap of things that are to be read, unless the use or order and manner of reading them ●e well understood: and as in things that ●e fit for banquets, tho●gh there be great variety of sweet meats, yet there is nothing more unpleasant or unwholesome if they be mingled together, so the Student must have a care least the order of his reading be confounded, lest the last things be handled in the first place, and these things which should be in the midst be put in the last place, which whosoever do, they cannot only not comprehend the things which they study, but utterly debilitate and weaken the strength of the memory: therefore it is good for Students to use an artificial Analysis, or resolution of things, into their principles, which may teach to divide the whole into his parts, and to subdevide parts into parcels, and in the end to make a consent and coherence of the entire thing and his parts: for though the skilful partition of things be profitable and pleasant for the memory, yet the Synthesis, that is the apt composition, coordination, and mutual dependence of them doth more satisfy the understanding. 
d Polyb. lib. 1. histor.  Therefore Polybius a judicious author saith well, that they which think by the knowledge of particulars dispersed to attain to the full and perfect knowledge of the entire thing, do no less err, than he who viewing the parts of a handsome and comely body severally and apart, doth therefore imagine that he knoweth the whole feature and portraiture of the same man, who if he had beheld these parts joined together, and compacted, and moved by the spirit of life, would have judged far otherwise. For though a man may have a confused notion, or conceit of the whole, by viewing the separate and disjoined parts, yet it is not possible that he should have certain knowledge of the same, no more than a man by seeing particular Maps of Cities, may certainly perceive the figure, situation, and order of the whole world. But he that can easily resolve things, may easily compound: for when he knoweth the particular sense and use of the things resolved, he may easily gather a general knowledge of the whole thing, that is, a general knowledge of many particulars, which make one entire thing. The form of this Analysis following, which is of Master Littleton his two chapters of fee simple, and fee tail, I do offer to the Student, as a thing to be considered of, because it is incident to this purpose, which though it gain not his good liking, yet if it minister but occasion unto him to adventure upon the conveyance of some other Analysis, that may receive the general approbation, and just applause of the learned, I shall think my labour herein well bestowed, and would gladly reap profit by other men's precedents.  


The Analysis of Littleton's Chapter of Fee simple.  
Tenure in fee simple may be considered 

By the definition 

Invented. 

Fee simple is as much to say, as a lawful and pure inheritance.    
Expounded. 

He that will purchase lands in fee simple must have these words in his purchase, (To have and to hold to him and to his heirs, for these words his heirs make the estate of inheritance, and he that lacketh this word (heirs) and hath to have and to hold to him and to his assigns for ever, hath estate but for term of life.      
By the tenant in fee simple who is after two sorts to be considered. 

Generally. 

Tenant in fee simple, is he which hath lands or teneme●●s to hold to him and to his heirs for ever.    
Particularly. 

By purchase as when a man both lands and t●●ements by his deed, or by his agreement, to the possession of which he cometh not, by title of descent from none of his ancestors, or his cousins, but by his own act.  
By descent who may be thus described. 

He that is tenant in fee simple must be of the whole blood w●● may be proved by two examples. 

1 If a man have issue two Sons by two ventures, and the elder purchaseth lands in fee simple, and dieth without issue, the younger brother shall not have the land, but the uncle of the elder brother, or some other his ●ye cousins shall have it, for that the younger is but of the half blood to the elder brother.  
2. If a man have a Son and daughter by one venture, & a Son by an other venture, and the son by the first venture▪ purchaseth lands in fee simple, and dieth without issue, the sister shall have the land by descent as heir unto her brother, for that the sister is of the whole blood to the elder brother.          
By the properties of fee simple. 

1 Inheritance in fee simple may lineally descend but not lineally ascend which may be illustrated by six prerogatives. 

1 By the uncles prerogative 

If the father's son purchase land in fee simple, the uncle shall have the land as heir unto the son, and not the father, because it cannot lineally ascend.    
2 By the father's prerogative which is threefold. 

1 If the foresaid uncle die without issue, the Father living, the Father shall have the land as heir unto the uncle, and not unto the son, for that he cometh to the land by collateral descent, and not by lineal ascension.  
2 If lands descend by the Father's side, the Father's side shall inherit, and none of the Mother's side.  
3 If the son die without issue, and have purchased lands in fee simple they of the blood of the father's side shall be heir unto him before any of the mother's side.    
3. By the mother's prerogative which is twofold. 

1 If the son having purchased lands in fee simple have no heirs on the father's side, then shall the land descend unto the heir on the mother's side.  
2 If a man take a wife inheritrix in fee simple, which hath issue a son and then dieth, and the son entereth into the tenements as son and heir to his mother, and after dieth without issue, the heirs of the mother's side ought to inherit the tenements, and not the heirs of the father's side.    
4 By the brother's prerogative which is after two sorts. 

1 If there be three brethren, and the middle or younger brother purchase land and die without issue, the elder brother shall have the land by descent, for that he is more worthy of blood.  
2 If there be two brethren by divers ventures, and the elder is seized in fee simple and dieth without issue and his uncle entereth as heir unto him which also dieth without issue the younger son shall inherit the tenements as heir to the uncle, because he is of the whole blood to his uncle.    
5 By the Sister's prerogative. 

If a man be seized of land in fee simple, which hath issue a son and a daughter by one venture, and a son by an other venture, and dieth: and the elder son entereth, and dieth without issue, the daughter shall have the land, and not the younger son, but if the elder brother die before entry be made, than the younger brother shall have the land. Qui a possessio fratris defe●do simplici facit sororem esse heredem.    
6 By the prerogative of the whole kindred. 

If a man purchase land in fee simple and die without issue, every one that is his next cousin collateral for default of issue may inherit.      
2 Of such things whereof a man may have a manual occupation, possession or receipt as of lands, tenements, rents, or such other, a man shall say in his pleading & in way of bar, that one such was seized in his demesne as of fee, but of such things that lie not in manual occupation, as of an advowson of a church, or such manner of things, there he shall say, that he was seized as of fee and not in his demesne as of fee.  
3 Fee simple is the largest & greatest inheritance that a man can have.  
4 For default of lawful heirs the lord shall have the land held in fee simple by escheat.        

Observations upon the Analysis.  

A.  THis definition, which Master Littleton useth, soundeth like a good Logical definition, as consisting of the true genus, and the proper difference: for this word (inheritance) is the genus, which extendeth as well to fee simple, as to fee tail, and this word (pure) is a difference, whereby it is distinguished from fee tail: for fee simple is a pure inheritance, that is without limitation or restraint, but fee tail is a limited or a restreigned inheritance. This word (lawful) in the definition is not idle: but the meaning of it is, that it is an inheritance according to the meaning of common law, for if by (lawful) should be meant rightful, than a fee simple by diseisin should be excluded, which I think was not Master Littleton's intent. And again, if this word (lawful) should extend to all laws, inheritance should be here taken according to the interpretation of other laws also, which cannot be. Master Littleton well beginneth with the definition, for there are but four things to be doubted of, first, whether a thing be in rerum natura, secondly, what it is, and of what nature, thirdly, whether it be such and so qualified or no, fourthly, why it is such, and so qualified: and he that well openeth these four points▪ shall in all learned discourses show himself excellent and absolute.  

B.  The nature of fee simple may be somewhat understood by applying it to the subject to which it appertaineth, for tenant in fee simple, and tenure in fee simple, being coniugata, he that well knoweth the one, must of necessity well understand the other.  

C.  Master Littleton lastly describeth estate in fee simple by certain adjuncts or properties which do greatly serve to illustrate, and explain the things whereof we entreat: they are of two sorts, external and internal. Internal are they which flow from the nature of the thing itself: of such sort are the first and third properties mentioned in the Analysis, for in that fee simple may lineally descend, and not lineally ascend, the nature of the tenure is the only cause, for it being to a man and so his heirs, the more worthy heir is he that is of the body, the less worthy he that is of the blood and not of the body, but the father in regard of the son can be neither of these but in regard and by mediation of the uncle he may be heir to the son, because he is of the uncles blood, so that in the direct line it is evident, that the fee simple cannot ascend: and it is a very essential property to fee simple to be the largest and greatest inheritance, because it is to a man and his heirs without limitation. external properties are these; which do so go before a thing, or so follow it; or so cleave to it, that notwithstanding there is no necessity of any of these: as for example, before the kill of a man, commonly there is some brawling and contention of words▪ With the act doth concur the sighing or groaning of him that is slain, and the flight, fear, lurking, trembling, and unconstant answer of him that did kill him do follow the act, howbeit some be slain, without the concurrence of these circumstances. There be two sorts of adiunctes, some belonging to the person, some to the thing itself, to the person as the kindred, country, se●e, age, education, the habit of the body, the fortune, the estate, the qualities of his mind, the manner of his life. The adjuncts of the thing are the causes, the place, the time, the manner of doing a thing, and such like. Of these, some be common, and some be proper: common, as if one should commend Achilles, because he was of good birth, because he was a great captain, because he was in fight against the Troyans', for every of which, Diomedes is as much to be commended as Achilles. Proper adjuncts be, as if thou shouldest commend Achilles for his great valour in kill Hector the stoutest of the Troyans', and for his good fortune in kill Cygnus, who being invulnerable, did bar all the Grecians from coming down the wall, and because being young, and not bound by any oath or leageance, he fought so valiantly for the Grecians. These two later of the proper adjuncts, I call external, as not flowing from the essence of a thing, but befalling externally to it when it is in esse. Of this kind there are two in the Analysis, the second and fourth.   

The Analysis of Littleton's Chapter of Fee tail.  

Fee tail may be divers ways considered 

By the first original. 

Tenant in fee tail is by force of the statute W. 2. cap. 1. for at the common Law before the said statute, all inheritances were fee simple.    
A By the definition. 

Invented. 

Feodum taliatum est haereditas in quadam certitudine limitata.    
Expounded after ij. sorts. 

1 If tenant in tail die without issue, the donor or his heirs shall inherit as in their reversion, for in every gift in the tail the reversion of the fee simple is in the donor.  
2 If a man give lands or tenements to an other to have and to hold to him and to his heirs males or females, he to whom such gift is made hath fee simple, for that it is not limited by the gift of what body the issue male or female shall be.      
By the diverse kinds thereof 

In respect of the nature of the entail. 

tail general which is to be considered by the 

Definition. 

Invented. 

tail general is where lands be given to one and to the heirs of his body begotten.    
Expounded. 

Therefore it is called general tail, because whatsoever woman the tenant taketh to wife, if he have many wives, & by each of them have issue, yet any of these issues by possibility may inherit the tenements by force of the said gift, because that every such issue is of his body engendered. So if lands be given to a woman, and to the heirs of her body, howbeit that she have many husbands, yet the issue that she hath by each husband may inherit.      
By an example or special kind thereof 

If tenements be given to a man and to his wife, & to the heirs of the body of the man engendered, in this case the husband hath estate in the general tail, & the wife estate but for term of life.      
tail special which is to be examined according to the 

Definition. 

Invented. 

Tenant in tail special is where lands & tenements be given to a man and his wife (jointly or severally) & to the heirs of their two bodies begotten.    
Expounded after two sorts. 

1 In such case none may inherit by force of such gift, but those which be engendered between them two, & it is called special tail: for that if the wife die and he take an other wife, and hath issue, the issue of the second wife shall never inherit by force of such gift, nor also the issue of the second husband if the first die.  
2 In the same manner it is where lands & tenements be given by a man unto another with a wife, which is the daughter or cousin to the giver in frankmariage, which gift hath inheritance by this word (Frankma●) unto it annexed, howbeit they be not expressly said nor rehearsed in the gift, that is to say, that these donees shall have these lands or tenements to them & to their 〈◊〉 between them two ingengred, & this is called special tail, because the issue of the second wife may not inherit, & the woman donee in frankma● must be of kin to the donor, & they shall do no service but seal it, till the 4. degree to be accounted from the donor be past.      
diverse kinds thereof. 

1 If lands be given to the husband and to the wife, and to the heirs of the husband which he begetteth of the body of the wife, in this case the husband hath estate in special tail, and the wife but for term of life.  
2 If the gift be made to the husband and to the wife, and to the heirs of the wife of her body by the husband engendered, the wife hath estate in special tail, & the husband but for term of life.  
3 If lands be given to the husband & the wife, and to the heirs which the husband hath by his wife in this case, both have estate in tail special, for that this word (heirs) is not limited more to the one then to the other.  
4 If lands begiven to a mau & his heirs with he engendereth on the body of his wife in this case the husband hath estate in the tail special, & the wife nothing at al.        
In respect of the persons to whom the tail belongeth. 

tail to the heir male which is two fold. 

1. If lands be given to a man & his heirs males of his body engendered, in such case his heir male shall inherit, but his issue female shall never inherit.  
2 If lands be given to a man & to his heirs males of his body engendered, & he hath issue ij. sons & deceaseth, and the elder son entereth as heir male, and hath issue a daughter and deceaseth, his brother shall have the land and not the daughter, for that the brother is heir male.    
tail to the heir female with is to be considered by the definition. 

tail to the heir female, is where lands be given to a man & to his heirs females of his body engendered, in this case his issue female shall inherit by force and form of the said gift, and not the issue male, for that in such cases where the gift is, who ought to inherit, and who not, the will of the donor shall be observed.        
By the properties. 

1 Whosoever shall inherit by force of a gift in the tail made unto the heirs males it behoveth him to convey his descent by the males with may be illustrated by 2. examples. 

1 If lands be given to a man and to his heirs males of his body engendered, and he hath issue a daughter, who hath issue a son, and deceaseth, in this case the son of the daughter shall not inherit by force of the tail, but in such case the donor shall enter.  
2 If lands be given to a man and his wife, and to the heirs males of their two bodies begotten, and they have issue after the like sort, the like shall happen.    
2 The death of a man taketh not away the estate of those that be in the tail, as if a man have issue a son & deceaseth, and land is given to the son, and to the heirs of the body of his father engendered, this is a good tail, and yet the father was dead at the time of the gift.  
3 The donees and their issue shall hold of the donor and his heirs as he holdeth of the Lord Paramount.        

Observations upon the Analysis.  
THis definition, which Master Littleton maketh of estate tail, consisteth likewise of genus, and of a difference. The genus is haereditas, which is common both to it and to fee simple: the difference in quadam certitudine limitata, by which it is distinguished from fee simple, for that is non limitata & sine certitudine, and by this definition a man may know what a fee simple is, and by the definition of fee simple what fee tail is, so that the rules of art are well observed, which are that Rectum est judex sui obliqui, and opposita juxta se posita magis illucescunt.  
Though the division or tenure of estate tail doth in the Table precedent consist of two members, or two differences, yet the especial tail is divided into more parts: and that manner of dividing is not contrary to the rules of method, for it is too much curiosity to exact in every division two only opposed essential differences, and two distinct kinds. There be three causes wherefore a division cannot be made by two differences. First because of no kind of thing, both the essential differences cannot certainly be known, but the one of them we do express by a negative. Secondly, because that difference which we set down in the affirmative is not alway the true difference. Thirdly, because the diverse nature of diverse immediate kinds of one thing will not always permit a twofold division, for though the division of Animal in hominem & brutum be bimembris and according to rigorous exaction, yet sith there be many kinds of brutish creatures, some that swim, some that fly, some that go, some that creep, and the particulars of these kinds do differ in the quintessence of their nature, surely to comprehend all these distinct things under two differences is not to be required, because it is either impossible, or a thing of exceeding difficulty. But when things are to be handled by way of disputation, as the arguing of cases which is of great use in the law, another method and course must be used then hath been taken in the framing of this Analysis, for there the principal case must be fully set down, the points of ●awe orderly distinguished, the reasons on the one part must be first set down, with answers annexed unto them, than the reasons on the other part, with answers likewise in their due places: and lastly, the conclusion of the whole controversy debated, whether it were by judgement, adjournment, or by the concord of the parties, or by other special mean, and for better direction herein (I am desirous to profit others if I could) I have set down an homely pattern according to the plains of my conceit, in the disposing and ordering of a case, famous in our year books, and of great weight and use, being the Prior of Mertons' case, being very often at large argued, namely, in the eighteenth, ninetenth, twentieth, and twenty one years of the reign of King Edward the fourth at several times, and was likewise touched the second year of Richard the third, and all the contents of the arguments upon this case delivered, as many as did concern the principal points then in question (for by matters are to be reposed in a several place by themselves) I have brought into the compass of a few lines, if you respect the large leaves wherein they are handled.   

Le case enter le Prior de Merton plaintiff, & le Prior de Bingham defendant.  
EN le. 3. an de H. le. 3. 
Scir. faci. 18. E. 4. 22. 19. E. 4. 2. 47. 20. E. 4. 16. 21. E. 4. 60. 2. R. 3. 5.  un fine fuit levy parenter le Prior de Merton pl. et le Prior de Bingham deforceant sur un brief de covent, que fuit en ceux parolls: cest le final concord parenter le Prior de Merton querentem et le Prior de Bingham deforceantem de 5. marks, et v. s. rent cum pertinentiis en S. et R. sur que un brief de covenant fuit sum̄on enter eux que fuit que lauantdit Prior de Bingham acknowledge et grant pur luy et ses successors que touts iours, apres ils payer chescun an al esglise de Merton pur les tenements queux il tient del dit prior et pur les tenements queux W. de W. ascun foits tient del dit Prior en les villages auantdits cinque marks, et v. s. a deux termes dans, pur touts suits et services, et que il ferroit a le chief seign̄or del fee pur lauantdit Prior de M. et ses successors touts services queux apperteignont a les dits tenements: et pur cest grant le dit Prior de M. grant pur luy, et ses successors, que ils violent garrant̄ al auantdit Prior de Bingham et ses successors touts lauantdits tenements pur les auantdits services contra omnes gentes: sur que vient en le court un I. Prior de Merton et prya scire faci. enuers W. Prior de Bingham dauer execution darrerages del dit rent, que fueront due en les ans darrein pass, et il avoit: et fuit return &c. a quel iour le Prior de Bingham vient eins, et dit que le fine prove le rent grant a le predecessors del pl. destre un rent service on a●●une auter rent issuant hors de terre et nemy un annuity, per que entant que il auoit acknowledge, que cest rent fuit execute, il doit aver un Assise ou distress, et nemy un brief que est en nature de brief dannuitie▪ et sur cest ils demurront.  

Les questions de ley.  

1. Si le fine fuit bien levy.  
2. Si le rent soit un annuity.   

1. Negat. Que le fine ne fuit bien levy.  

Littleton.  
Fines he sont bon e●●eant levies de choses queux ne sont in rerum natura al temps del fine levy, 
A.  et le rent de que cest fine fuit ●eu●e ne fuit in esse al temps pe● que &c. 
Ratio prima.    

Brian.  
Ceo ne besoigne. 
B.  Car si ieo auoy in Islington 20. li. rent issuant de terres de twenty homes per several grants, 
Responsum.  si ieo grant per fine a vous 20. li. rent hors de lour terres ou tenements in Islington vous naueres 20. li. rent queur ieo auoy in Islington mes vous aueres un novel rent: mes est diversity ou le chose de que le fine est destre levy gist en demesne, et ou nemy. Car lou gist en demesne, la doit estre in esse al temps del fine levy, come si ies levy fine de mon terre en dale lou ieo nauera ascun terre en dale, cest fine est void, mes de chose que poit issuer hors de terre un fine poit estre levy, coment que ne soit in rerum natura, come de rent ou common in dale, ou en fait il nauoit ascun common ou rent in dale al temps &c. mes sil auoit common in gross en 〈◊〉 le ville, et grant a moy un common, et ne monstra quel common, ceo serra construe le common que il auoit en 〈◊〉 le ville.   

Neale.  
Cest fine est levy de un mere annuity, 
C.  et pur ceo est male, 
Ratio. 2.  cont̄ si de chose naturallment surdant hors de terre come si ieo conust tout mon dr̄t en un acre de terre auous et vous per 〈◊〉 le fine grant a moy un annual rent de 20. s. hors de 〈◊〉 le terre, cest bon grant, vn● ne fuit ascun original de ceo: per que &c.   

Brian.  
En ancient temps home puissoit aver conus un fine sans original, 
Respons.  et sil soit levy a cest iour il poit aver scire facias et si aduowso● descend al coparceners et ils ꝑ indenture enrolle voilent agree de presenter ꝑ turn, chescun de eux quant son temps vient auera scire facias: per que &c.   

Piggot.  
En ancient temps fines fue● levy deo et ecclesie, 
Replicat ad hoc respons.  mes le ley estore alter: mes come ieo pensa chescun fine doit aver original et de accorder a ●. Car le note est placitum conuentionis, et en nostre case nest ascun couen̄ dun annuity, mes dun rent solement, et si le original seit de 20. acres et le fine soit levy de 40. acres quant al 20. le party ser● discharge: car ne fuit ascun original de eux, et en praecipe quod reddat le fine poit estre levy del chose en demand, car le original conteigne et concern c̄. Issint si brief de couen̄ soit de 20 acres en dale et le fine est levy, de 20 acres en sale le fine nest bon, ou si le original soit de terre arable, et le counusans de pasture.    

1. Affirmat'. Que le fine fuit bien levy. 
D. Ratio 1.   

Sulyarde.  
Si en un brief de couen̄ port dun mannor, le plaintiff grant le mannor al le deforceant, et grant oustre a discharger le dit mannor enuers le seignior del fee, cest bon fine, et vnc● le clause de discharging ne fuit en le brief de couen̄, donques en cest case &c.   

Sulyarde.  

E. Ratio 2.  Si en un brief de droit de customes et services le seignior poit releaser per fine tout son droit, que il ad en le terre, et le ten' poit grant per 〈◊〉 le fine 20. ●. annualment, donques &c.   

Catesby. 
R. 3.   
Quant un home acknowledge le droit de terre a un et un rent est reserve sur le grant et ren●, ou un common, ou tot carectae ligni destre prise del ter●, cest bon, car ils sont conteigne implicatiue, en le original, mes si le fine est levy dun chose nient express ne implide en le original cest void, donques en cest case, pur c̄ que le fine est dun rent service, car le fine est pro omnibus alijs seruitijs per cest parol (alijs) est implide, que le rent est aliquod▪ seruitium.    

2. Negat. Que le rent en cest ●ase nest un annuity.  

Piggot.  
Le fine est que le Prior de Merton pur les services avant dits acquit le Prior de Bingham de touts services enuers le seignour del fee, 
F.  et pur ceo cest rent service et nemie rent secke. 
Ratio. 1.    

Collowe.  
Le rent est change per le fine, 
Respons.  Car ambideur les parties serront estoppe de denier lestate prise ꝑ le fine, come si home soit seize de terre en fee, et un fine soit levy perenter est● et luy, per que lestraunge acknowledge m̄ le terre a luy et a les heirs de son corps ingendres, ore son estate est change, issint si home tient per service de chiualer, et le signor per fine acknowledge que il tient en soccage ore le tenure est alter, et il tiendra en socage, et en cest case le rent ne poit estre rent service, car donques le party poit distr sur le terre et ceo ne poit estre. Car touts suits quant al terre sont discharge per le fine: et ne poit estre rent charge. Car nul terre est charge oue distr: et rent secke ne poit estre: car donques il serra demand sur le terre: et annuity ne poit estre: Car le Priour ne poit charge lemeas●●.   

Pigot.  
Si le Prior ne B. ●e poit extinguisher les services per ses parolles, 
G.  on per●son act, 
Rat. 2.  le ●ent service continue, per q &c.  
Si home tient de moy per xx. s, 
H.  et ies confirm son estate de tener per un denier pur touts manners de services, 
Rat. 3.  il ferra fealty, & cest rent est parcel del ancient rent, per que &c.    

2. Affirmat'. Que le rent est un annuity.  

Starkey.  
Si un home ne poit grant al auter ceo ḡ il auoit devant, 
I.  donques le rent ḡ le Prior de Bingham grant a le Prior de Merton ne poit estre launcient rent, 
Rat. 1.  mes un novel rent ou un annuity, per que &c.  
Si ieo teigne de vous per homage, 
Con●ir. ratio.  fealty, et ●. s. rent, et ieo voile graunter a vous per fine xii. d. rent pur les tenements queux ieo teigne de vous, cest un novel rent, & nemy launcient rent, per que &c.   

Vauisor.  
Si per fine sur conusans de droit come ceo, un novel rent poit este grant, car cesty a que le conusans est fait poit grant un rent a le conusor, 
R.  et le cause est pur ceo que il serra intend que cesty a que le coNusans est fait est seisie vel terre: 
Rat. 2.  Mes auterment est de fine sur grant & render, car le ley ne i●tende que le grauntee est seisie del terre, donques en cest ●ase le rent est un novel rent.   

Choke.  
Si ceux parolx, que le Prior de Bingham ferra touts les services pur le Prior de Merton, 
Rat. 3.  ne prouant ceo destre rent service: Car si soient seignior et tenant, et le seignior release a le tenant per fait indent tout son droit que il avoit, reddendo unum denarium, & faciendo capitali domino seruitia &c. en le behalf del seignior ●eux parolx sont voides, Car per le release son signiory est extinct, donques en cest case &c.   

judgement.  
Trois des justices agarderont ḡ le pl poit sure execution per Scire facias, et issint judgement fuit enter▪ e●maintenant sedente curia, un brief Derror fuit mise eins. Et fuit touch en le bank del Roy 2. R. 3. mes nest la decids, ne argue.      

Observations upon the precedent form of arguing.  
A. The first reason made by Mast. Littleton is drawn from the cause of the thing generally, and specially from the material cause: For if the only material causes of fines be things which are in esse, it is a probable conclusion to say that of this rent being not in esse, a fine could not be levied. And as the rule of Logic is, Quae eadem sunt eorum generationes et corruptiones, causae constituentes et corrumpentes eaedem sunt: 
e Arist. Top. 7. c. 1.  So of such things which be the same in kind, the causes material are the same: and therefore the material causes of fines, that is the thing whereof they are levied, aught to be the same.  
B. The answer of Brian to Mast. Littleton's reason is by way of distinguishing, for every answer must be either by direct granting, or direct denying, or else by distinguishing which is partly a granting partly a denying.  
C. Mast. Neale his reason is drawn from the same place of Logic, from which Mast. Littleton's was derived: for he supposeth that an Ammitie is no fit material cause whereof a fine may be levied.  
D. Sulyards' reason is drawn à comparatis patibus from things alike probable: For if a man in a writ of Covenant brought of a manor, may grant and covenant to discharge the said manor against the Lord of the fee, though in the writ of covenant there were no mentioning of any such discharge: by the like reason a man may levy a fine of a thing which is not mentioned in the writ of covenant, and which was no● in Esse before. And this manner of reasoning is grounded upon that rule in Logic, Si duo duobus aeque conveniant, & hoc huic conveniat, etiam illud illi conveniet. 
f Arist. Top. 2 c. 4.   
E. Sulyards' second reason is drawn á simili: For like as in a fine levied upon a writ of Right brought of customs and services, the tenant may grant a rent which was not in Esse before: so likewise in this case the fine might be levied of a rent, which had no being before. And this consequens is warranted by this rule, Si in uno eorum quae similia sunt aliquo modo se res habeat, eodem etiam modo in aliis se habebit. 
g Arist. Top. 2 c. 4.   
F. The first reason whereby Pigot goeth about to prove that the rent is not an Annuity is deduced à genere: For if it be truly named by the general name of service in the fine, it must be intended to be a special kind of rend service, and not a rent seek, according to the rule, Si aliquid sit genus, species ab e● comprehensa participabit natura eius, sed non natura eius quod est contrarium generi.  
h. G. Pigot his second reason is drawn a comparatis paribus.  
H. His third reason is drawn a simili.  
I. Starkey his first reason is drawn a comparatis paribus.  
K. The reasons used by Vavisour and Choke to prove the rent to be an Annuity are drawn a simili.    
FINIS.