A parallel OR CONFERENCE OF THE CIVIL Law, the CANON Law, and the COMMON Law of this realm of England.  
Wherein the agreement and disagreement of these three laws, and the causes and reasons of the said agreement and disagreement, are opened and discussed.  
Digested in sundry Dialogues By WILLIAM FVLBECKE.  
At the end of these Dialogues is annexed a Table of the Sections or divisions of the principal points, matters, and questions, which are handled in every Dialogue.  
AT LONDON Printed for the Company of Stationers.  
Anno Domini 1618.   

TO THE MOST gracious and reverend Father in God John by the providence of God Lord Archbishop of canterbury, Primate and metropolitan of all England, and one of the Lords of her majesties most honourable privy council.  
RIght reverend, right honourable, and my singular good Lord, as nothing is more comfortable to the master, or Sea-man, then after a great tempest to possess a pleasant calm, and grateful serenity: so nothing is more plausible and acceptable, to them that haue employed, and exercised themselves in any parte of learning, then after their long and laborious travail, to enjoy the warmth& bright reflection of an honourable countenance, this partly, and( if the great arrearage of duty, and thankfulness, which I owe to your Grace, do not challenge priority) especially hath moved and enforced me, to present to your honourable view and patronage these tripartite Dialogues, to whom her sacred majesty hath committed the executing and maintenance of the civil and Canon laws, in these Dialogues by my slender pencil rather delineated, then described: and because the Common lawe cannot otherwise bee divided from these twain, then the flower from the roote and stalk, therefore this entier discourse I haue wholly committed to your Graces tuition and disposal: In which I sought rather to profit the understanding, then to please the sense with a plaufible, copious, and polished style, or with foreign conceits not belonging to the titles of the lawe, which I handle: assuring myself, that as verbal delights, and affencted vanities are to your Lordship odious, irksome, and of no account: so they are in truth to the gaping ears of this curious age, very snares, and Syrens. Wherefore humbly referring myself to your Graces excellent wisdom, and abundant clemency, for the imparting of a favourable regard and countenance to these my unworthy labours, I beseech the almighty God with the most submiss devotion of my heart, that the daies of your life( which the Lord of life multiply) may be the degrees of your happiness, to the great good of this Church, and Common weal, to the exceeding comfort, and contentment of such as be studious of virtue, law, and equity, and to the immortal propagation of your famed and memory through all ages, and times, until the last time of all ages.  
Your Graces most humble and bound William Fulbecke.   

TO THE COVRTEous Reader.  
CVrteous Reader it is observed by Seneca, that in one and the same plot of ground, the Hound seeketh for a Hare, the ox for good grass, and the stork for a Snake or a Lizard, 
Senec. epist. 109.  
In codē prato bos herbam quaetit, canis leporem, ciconia lacertam.  and my desire was, that in this book of Dialogues, the several students of the Canon lawe, the civil law, and the Common lawe of this realm, might haue diverse repast according to their disagreeing appetites, 
Horat.  
trees mihi conuiuaeprope dissentire videntur; Poscentes vario multum diuersa palato. & matters suitable to their distinct contemplations, for it seemed strange unto me, that these three laws, should not as the three Graces haue their hands linked together, and their looks directly fixed the one vpon the other, but like the two faces of Ianus, the one should be turned from the other,& should never look toward, or vpon the other: and weighing with myself, that these laws are the sinews of a state, the Sciences of government,& the arts of a common weal, I haue seriously& often wished, that some joint discourse might be made of these three excellent laws, whereby the agreement and disagreement of them, and the grounds, and reasons therof might evidently appear by some very skilful in these laws well grounded, and if it might be, which I never yet saw, professed in the same: and in such a plentiful harvest of flourishing wits in this land, which are adorned with great variety of reading, as the firmament with diversity of stars, I could not but expect the event of so good a thing: yet in the end, when I saw many daies overpass, and slide away without the success of my desire, taking my wish to bee somewhat more, then Vigilantis somnium; I thought it better to make some trial of my slender ability, to put my wish in practise,& to lay that heavy burden vpon mine own feeble shoulders, then that such a profitable thing should be altogether frustrate of attempt, howsoever void of effect: by that mean( if it might be) to excite, and stir up some other, quem Musae comitantur& artes, to undertake this task, and far more fully judiciously, and learnedly to accomplish this business. For I remember the saying of D. Bartolus, a principal author in the civil Lawe, that those things, which are not very well invented, yet may bee profitable in this respect, because they may perhaps provoke others to the inuestigation of the truth 
Prosunt minus recte excogitata, cum alios incitent, saltem ad veritatis inuestigationem.  
Bartol. in tract. test. . Great and forcible reasons haue moved me to haue in special regard the knowledge of the lawe, considering that by the good constitution, establishment, and observation therof, all common weals, which are grown to hight and pre-eminence, haue had their prosperous rising, their abundant increase, and their fortunate continuance; but by the want, breach, or change of good laws, nothing hath ensued but the desolation, downfall, and inevitable ruin of many dominions, and estates. Not to trouble your patience with instances of petty provinces, and inferior regiments, by your favours let the four most eminent common weals of the world be tried by this touchstone, and let my assertion by their destinated courses bee measured and examined; The four common weals I speak of, were the Cretensian, Athenian, Lacedemonian, and roman estates: the first was of all these the foremost and most ancient, famosed by the laws of Minos, who so studiously employed his pains in the making and amending of laws for the space of nine yeares together, that this Common weal being well settled, was well fenced against future mishaps, and continued in great prosperity till the romans grew too strong: The Athenian Common weal was first guided by Dracoes laws, written not with ink, but with blood, rather terrors then rules of estate: wherefore these for their too great asperity being canceled, and antiquated, Solon that sage Father, being( contrary to the foolish proverb or rather by-woord) both a great clerk, and an excellent wise man, and having the whole administration of that estate committed to his hands did enact, and establish laws with such moderation, and equity, that the greatest parte of the Lawe called the laws of of the xij. Tables, that absolute president,& worthy platform of all Iustice( to the full opening and clear expounding, of which it might bee wished that some very learned man would put to his painful hand) are said to be the fruit and issue of his deep, and peerless iudgement. The Lacedemonian common weal was established by Lycurgus that famous lawemaker, by whose profitable directions& ordinances that common weal did for the space of six hundred yeeres exceedingly flourish in equity and glory, but when the neglect of these laws had entred and pierced into the body of that common weal, and wantonness, licentiousness and desire of money had encroached into the place of these commodious orders, they lost their renown with their liberty, and the deformity of mens manners did wholly disfigure the beautiful and decent proportion of that goodly Common weal. Now I come by your favour to the roman estate, that is, to the miracle of miracles( if any human thing may bear so gorgeous a title) surpassing far her predecessors in greatness, happiness, and continuance of time: the cause of which rare felicity is no other in truth, then the prescript of good laws, made by Numa, and others, howsoever some partially affencted, do as their several fancies lead thee, ascribe& attribute the same to several causes, whose censures& opinions give me leave by your patience, and permssion in humbleness and modesty to examine. That saying of Cicero seemeth not true unto me, that military virtue hath purchased to the people of Rome credit,& to the City eternal glory, and hath made the whole world obedient to that empire: 
Cicer. pro M●rena.  
Virtus militaris populo Romano nomen, urbi aeternam gloriam peperit, orbem terrarum parere huic imperio coegit.  nor that of Lactantius accusing the Romaines of unjustice in these words: Howe much profit, differeth from iustice, the people of Rome do testify, who proclaiming war by their heralds, and doing ini●rie in form of lawe, and alway desiring other mens goods,& altering the property by violence, haue achieved to themselves the possession of the whole world: 
Lactant. lib. 4. institution c 9.  
Quantum a iustitia recedat utilitas. populus ipse Romanus docet, qui per faeciales bella indicendo,& legitime iuiurias Inferendo, semperque aliena cupiendo& rapiendo possessionem sibi totius orbis occupauit.  nor that of livy who is directly opposite to Lactantius. The gods( saith he) favour religion and loyalty, by which the romans ascended to such an height of estate: 
livius. lib. 42.  
Fauent pietati fideique Dij, per quae populus Romanus ad tantum fastigij venerit.  nor that of Dio uttered in person of Caesar: Our ancestors did make our city so great as now it is, by hazarding and exposing to danger their own wealth as if it had been other mens goods, but other Princes Dominions as belonging unto them they did not doubt to seize: 
Dio lib. 38.  
Maiores nostri tantam vrbem nostram fecerunt, cum suas fortunas tanquam alienam possessionem semper periculis obiecerunt, aliorum autem ditionem tanquam pertinentem ad se haud cunctanter suam facerent.  nor that of Orosius: The city of Rome like an unsatiable belly did devour all, and yet was always hungry: For into her bosom all the wealth and treasure of other nations robbed and spoiled by the Romaines was conueied and transported: 
O osius lib. lib. 5. c. 18.  
Quasi inexplebilis venture Roma cuncta consumens,& semper esuriens, cum in sinus ipsius euersarum omnium urbium, nudaturumque terrarum abrasae undique opes cogerentur.  whereupon he further exclaymeth. look how happily she overcometh, so unhappily other nations are vanquished, and ouercommed: the happiness of this city is the vnhapines of the whole world: O unhappy world under this conquerour, a subtle vnderminer, a bitter enemy, a bloody tyrant: 
Quam vincit illa foeliciter tam infoeliciter quidquid extra est, vincitur: faelicitas urbis infoelicitas orbis: infoelicem sub isto victore orbem, arguto insidiatore, host infesto, domin. immiti  
Orosius li. 5. c. 1.& li. 6 c 12  though Arnobius a man of great sanctimony do in like sort surmise that this onely City was bread for the destruction of all mankind: 
civitatem unam in humani generis pernitiem natam.  
Arnob. adu. gen.  neither do I like Claudian his strange and paradoxical opinion, avouching patience to be the cause of the Romans prosperity. Rome( saith he) never sunk under the burden of mishape, and no wound dismayed it: after the great slaughter of Cannae and the dangerous war of Trebia, she did more lift up her head,& when flames of war did one each side besiege her, and the enemies ram menaced the wall, she sent her army into the farthest& most remote parts of Spain: 
Nunquam succubuit damnis,& territa nullo: Vulnere post Cannas maior Trebiamque fremebat, Et cum iam {pre}merent flammae murūque feriret, Hostis, in extrem. aciem mittebat Iberos.  
Claudi 5. st●●ic.  neither do I agree to Florus& Ammianus both agreeing in opinion. The people of Rome( saieth Florius) was tossed by many labours& dangers, so that virtue and fortune might seem to haue contended for the procuring of her sovereignty: 
Populus Romanus laboribus periculisque iactatus est, vt ad constituendum eius inperium contendisse virtus& fortuna viderentur  
Flor. in proaem. histor:  to whom Ammianus subscribeth, saying: virtue& fortune did herein jump for the most part jarring: but the aforesaid Claudian being at another time better advised, 
Ar●mian. lib. 14.  doth very fully& truly describe the causes of the roman prosperity. Rome was the mother of military discipline and laws,&( by these means) dilated and stretched her principality over all countries,& prescribed unto thē their first laws& orders: 
Armorum legūque parens quae ●undit in omnes Imperium, primique dedit cunabula juris.  
Claudi. 3. stili●.  for the good government of their commonweal at home, 
Virtus hic convenit& fortuna, plerumque dissidentes.  did make their warres to prosper abroad, and the giuing of laws to others, made others at peace with them, and to bear the yoke of more inclinable obedience: and they which so obey, find more good by the direction of laws, 
Quo arma vestra peruenerunt codem, ius vestrum hinc profectum perueniat.  then the protection of arms. Wherefore the Rhodians did very wisely make suite to the romans for their laws, rather then for their garrisons. Whither your weapons haue pierced, 
livius li. 37.  there let your laws arrive, but more fit to judge of these matters, then any above mentioned is Polibeus, a man highly commended by a learned civilian; 
Alberi gentle. li de arm. Rom. 2. c. 13.  as a good soldier experienced in warlike affairs, 
Bonus qui rebus interfuit miles.  as a good Captain in the regiment of souldiers, 
Bonus qui rebus praefuit ductor.  as a good judge in the controversies of great Princes: 
Bonus qui summis imperatoribus adfuit arbiter.  his opinion of the cause of the roman glory is thus. Fortune onely( saith he) did not purchase to the romans the universal Empire of the world, but virtue and discipline( he meaneth I doubt not, the discipline of religion, of arms, and of law) being all of them fit instruments for such an effect: 
Polyb. li. 1.  
Non fortuna romans vniuersale imperium peperie: said virtus, disciplina apta, ad tantam rem omnia.  and the law is prophesied by Anchises that grave trojan to be the very ground and occasion of the roman felicity: for thus he saieth to Aeneas. Regard thou( O roman) to govern Nations by just command: these shall bee thy artes, to be merciful to the meek, and stern to the proud, and to prescribe order to peace: 
Virgil lib. Aencid. 6.  
Tu regere imperio populos roman memen●o.( He tibi erunt artes) pacique imponere morem, Parcere subjects;& debellare superbos.  and Hannoes speech in the Senate house of Carthage was, that the best education of young men was to bee brought up in the obedience of laws: he speaketh thus of Hanniball. I think it most fit, to school and train up this young man, under laws and Magistrates, and that he should bee taught to live in just manner amongst others, least from this little spark a great scare-fire do grow: 
Ego istum inuenem sub legibus, sub magistratibus docendum vivere equo jure cum caeteris censeo, ne quandoque parvus hic ignis incendium ingens exsuscitet.  
livius lib. 21.  and as laws haue supported and upheld every estate into which they were entertained, so the decay of them hath been the desolation and downfall of all estates: and the commonweal of Rome( if ever any) hath tasted the lamentable bitter, and wonderful experiment hereof. For Ciero in the person of Scipio, that excellent man, doth evidently& amply according to his manner describe the ruin and declining of the roman glory. Scipio is of opinion that the commonweale cannot be governed without great iustice, and that as in musical instruments, a consent or harmony is made of distinct sounds, which being changed& distuned, the ears are offended with an vnplesant jarring: so of the principal mean, and inferior sorts of men agreeing amongst themselves, the good estate of a city doth grow, and that which in musticke is called harmony, in a commonweal is termed concord, which can never be without iustice: but when iustice was obscured& suppressed in the roman commonweal, there was not then a vicious commonweal, but which was a great deal worse then that there was no commonweal at all, but apparent disorder, and confusion. 
Cicer. in Laelio.  And this was well perceived by that ancient writer Ennius, for he bewailing the great alteration and decay of the Roman commonweal, doth withall disclose the cause of that strange accident: alas whether is the power and strength of italy vanished: into what a slender shadow are we shrunk: the state of Rome cannot stand without the ancient manners, and magistrates: 
Heu mihi quo latiae vires vrbisque potestas Decidit: in quas●paulatim fluximus vmbram: Moribus antiquis stat res Romana vi●●sque.  
Fragm. E●●●.  for these ancient manners which he affirmeth to be wholly preserved and retained by the just government of Magistrates, Cicero auocheth by way of comment vpon Ennius his speech to bee good laws and customs. Before our memory( saith he) our ancestors by custom did prefer excellent men to the magistracy, and themselves being worthy men, did observe the ancient customs and the laws of our forefathers, 
Fragm. 5. lib. Ciceron. de repub.  
Ante nostram memoriam& mos ipse patrius praestantes viros adhibeat,& veterum more ac maiorum in stituta retinebant excellentes viri.  and Saint Augustine a better judge then any that spoken yet, layeth all the fault& blame of the miserable& wretched estate of the romans vpon the breach and contempt of laws. For( saith Augustine) the noble and vn-noble were put to death, not by laws& iudgement of Magistrates, but by quarrels and malice of mind. 
D Augustinus li de civit. dei 3 c. 24.  
Neque enim ligibus& ordine potestatum, said turbis animorumq, conflictibus, nobiles ignobilesque necabantur.   
This may suffice to conclude and convince my former assertions, that no commonweal can flourish without laws, and if they bee once received and approved, and afterward altered, defaced, and trode under foot, such contempt and careless neglect of laws procureth the sudden and final misery, calamity, and distreputation of that commonweal. now hear me a little proving likewise unto you the antiquity and long continuance of these three laws( whereof the Dialogues ensuing do bear plentiful discourse) for the good administration and regiment of all commonweals.  
The Cannon lawe is more ancient, then the other twain, and of greater continuance. For amongst the ancient egyptians priests were iudges. 
Elianus lib. 14. vari Hist. c. 54.  The Druidae the priestes of the ancient galls, did judge of all controversies, as well private as public, and for offences they did ordain and inflict punishment, and if any man did not obey their decree, they did interdict him their sacrifices, which was the greatest punishment amongst them: for all other did avoid the speech and company of such persons as a contagious evil: 
juli. Caes. li 6. come.  Numa Pompilius the second King of the Romans instituted a high Priesthood, with an inferior order, and he gave them power to make laws concerning spiritual things, without the control or countermand of any, and as a parcel and member of religious matters, they had in charge the administration of poor mens causes, and of all such matters which in the civil law are called piae causae. 
Plinius secun lib de vi●●s illustri c. 3. Eutropi. lib 1. lustor. Dionis. Halicarnal. lib. 2. L●●i li Fene. li de sacerdot. Rom. Plin li. 13. c. 13. Cicer. pro dō sua& de ar●spec. re●pon  But what need heathen examples, when the commonweal of judaea, that is Gods own commonweal doth afford plentiful example& authority herein. Heli and Samuel the priests of God did govern amongst the people of Israel. 
1. Reg c 1.1. Reg c 7& 8.  And so God hath expressly commanded: My priests shal teach my people, what difference there is betwixt clean, and unclean, and they shall judge my laws and my precepts. 
Ezech. c. 44.  And in another place: Aaron, and the priests shall judge betwixt leprosy and leprosy. 
Leuit. 13.  josaphat the King of Iuda, when he did appoint Iudges in all the Cities of Iuda, he did appoint also in jerusalem levites& Priestes, that they might adjudge iustice, and the cause of the Lord unto the inhabitants,& he appointed them to judge of every cause of their brethren which was betwixt kindred& kindred, whensoever question should be of lawe, of commandment, of ceremonies, of justifications; and he appointed Amasias the high Priest in those things, which belong to God: 
Paralipom. 2. c. 19.  afterward the high Priest Iesus Christ did give divine laws& rules unto his people: 
Epistol ad Hebr. c. 3.4.5.8.9.  after him his Apostles, 
Actor. 15.2. ad Thessalo, 2.  then Bishops and Prelates in their dioces, 
De potest sum pontiff. in Canon cun●ta {per} mundum 9 questi. 3.  their power, their Cannons, their laws were approved by diuers Emperors and Kings, Philip, Valentinian, Marcus, justinian, Constantine the great, Honorius, and Theodosius, 
L. cum l. 4. de sacros. eccles. li. 1. C. Tit. 5 priuileg. quae general. l. 12, eod. Tit.§ 1. in eccle. Tit. in authent. collat. 9. Tit. 6. Rufin. li. 10. hist. eccl, c 1.  and many others: And by king Henry the eight of famous memory late King of England in his Parliament held the 25. year of his most prosperous reign, and revived in the first year of our renowned queen and sovereign Lady Elizabeth. 
25. H. 8. c. 19. 1. Eli. c. 1.  As to the original of the civil law I do not think, that, that which may properly bee called civil lawe, and was so called at the first, is any other then ius Romanum, or ius antiquum Romanorum, or that which hath been commented thereupon, or added thereunto. It is manifest that Romulus did establish laws, 
Dionys. Halicarn. li. 3.  and so did the other kings that followed him: and that the law was brought into a convenient form in these times, it is very apparent by this, that M. Tullius being one of the decemuirs was thrust into a sack, and by Tarquin his commandment was cast into the sea, because, corrupted by lucre, and reward, he did suffer the book containing the secrets of the sacred laws of their city, to be copied and written out by Petronius a Sabine: 
Valer. Maxim. li. 1. c. 1. & P. Papyrius is said to haue brought all the regal laws into one volume: 
Valer. Maxim. li. 2. in princip. Et§ jur. eiuil. de veter. jur. e●● cleat.  and for the perfitting of the other laws, the laws of the 12. tables were given forth by the decem-viri: 
L. 1.§ exactis de origin. jur. Diodor. Sicul. 12. Dionis. Halicarnas. li. ●.& 10.  which excellent laws if they were well, and at large explained, would give such light and intelligence to the makers of laws, that nothing in my simplo conjecture) more commodious could ever happen in any commonweal: these together with other constitutions made vpon principal occasion were observed& retained as the unveil of the roman government,& whereas in the times of civil dissension they were repealed or discontinued, Augustus Caesar that admirable and worthy Emperor did revive the good laws, and reformed the bad, and by the perfection of that commonweal brought about by him, the circled of the whole world as resting vpon that center became presently and universally peaceable and quiet: 
Veller. Pater. c. li. 2. histor.  but the Emperours succeeding him having more care to be great, thē to be good, made small reckoning of these laws, but by voluntary conceit commanding,& forbidding, they rather raged thē reigned,& the decrees of some of thē, namely Tiberias, Caligula,& Commodus are wittily termed of the learned ciuiliā, furores non iudicia 
Alber. gentle. li. lecti. Et Epi. 3. c. 18.  but these laws in the times of Archadius, Thodosius,& Iustiniā, recovered their strength,& shining to al the common weals of europe, as the Sun to al the climates of the earth, haue for their worthiness,& necassary use& employment received entertainment, countenance& great reward of Emperors, Kings,& Princes.  
The law of this realm hath, as the realm itself, suffered change by conquest: yet as far as I can perceive by record of ancient times, rather reason than sovereignty, and consent rather then command, was the principal agent in the alteration. Our greatest law-makers in former times were Ina, allured, Guthran, Edward, Ethelstane, edmond, Edgar, Ethelred, Canutus: after their reigns ended, and their laws established; K. Edward the confessor( after his inauguration in the throne of England) finding in the garden of the commonweal, some laws like to weeds, others like to flowers; as a diligent Bee he extracted a good juice out of the better laws, and the worse by him neglected, by difusing withered King William the conqueror having wholly subdued this realm, perceiving that his subiects did with great applause favour the laws of King Edward: yet seeing in them somewhat which himself and others in politic consideration disliked, imitating the frugal housewife, who knoweth that the best hony cannot be good until it be clarified and refined, singled out twelve persons out of every shire( imitating perhaps the romans, who appointed decemuirs for the making of their laws:) Men of approved skill& fidelity, who might by exploration sever the dross from the gold, and the erroneous laws from the convenient and commodious, 
Lambard. lib archaeon.  adding thereunto some customs of Normandy, 
Lib. des customs de Norman.  whereof many, for the reasonableness of thē, haue to this day continued. This lawe hath had duly increase, many of the old laws standing unaltered, some of them by reason of some sinister effect or sequel happening by them, justly changed, and others by reason of new accidents, adioying unto them: It hath flourished long in this good estate, and of the continuance and prosperity of it, three reasons in my shallow conceit may be rendered. First, because it so agreeth with the law, religion, and discipline of the holy, catholic, and true Church of Christ, that there is nothing in it which to the Law of God is cross or opposite. Secondly, because other nations with whom wee haue commerce,& intercourse, do not find their commodities or liberties to be impeached by this Lawe. Thirdly, because they are rather popular, then peremptory, rather accepted, then exacted, and rather embraced, then persuaded. And with this I conclude, leaving these laws to your further and more considerate commendation.  
Thine in all dutiful respect. William Fulbecke.   

The Table of the several Titles of the fifteen Dialogues ensuing.  

1 Of Contracts. Fol. 1. a.  
2 Of Gifts and grants. Fol. 7. b.  
3 Of bargains and Sales. Fol. 11. b.  
4 Of countries and services. Fol. 17. b.  
5 Of Iointenancy& tenancy in common. Fol. 28. b  
6 Of Exchanges. Fol. 32. a.  
7 Of devises; and Legacies. Fol. 34. b  
8 Of Borrowing and Lending. Fol. 50. b.  
9 Of the Bailement or delivery of goods and chattels. Fol. 54. b.  
10 Of the form and manner of ordinary proceedings in matters of law. Fol. 57. b  
11 Of common Wrongs and Trespasses. Fol. 78. a  
12 Of unlawful Assemblies, Riots, Routs, and forcible Entries. Fol. 82. a.  
13 Of Treason and Rebellion. Fol. 84. b.  
14 Of Homicide that is murder, manslaughter& Homicide by chance or misfortune. Fol. 89. b.  
15 Of Theft, Burglary, and Robbery. Fol. 101. a.    

The Introduction to the Dialogues.  
A Gentleman by name Nomomathes, with the riches, fortunes& revenues of this world very plentifully furnished, being liberally minded, and willing that his fountains should flow forth to the benefit of others, 
proverb. 5. vers. 16.  being a great favourer of learning,& desirous by all means to increase& advance it, maintained& kept with him continually in his house 3. learned men,& greatly addicted to the studies of the laws; one of thē name Canonologus a Canonist, the other Codicgnostes a doctor of the civil law, and the third Anglonomophylax a Barrister, and professor of the common law of this realm of England: of them he made great account,& of their learning above all human sciences, as being most fit& pertinent to the guiding& administration of public affairs: and as the famous Cofimus, Medices, and Laurentius his nephew 
Machia. lib. 7.& 8. Flor. hist. , did harbour in their houses at several times,& with many benefits pleasured the two excellent men and stars of learning Marsilius Facinus, and johannes Picus Miràndula, being in their houses the nurseries of good learning, as two faire flowers in their natural root& as Cato 
Plut. in Cat.  the Vtican a long time before the family of Medices was known in Florence, or Florence was known by the name, had continually in his company 3. worthy philosophers Apollonides the stoic, Demetrius the Peripatetike,& Cleanthes a cunning physician, many times conferring with thē, always profiting by them: so this gentleman of whom I speak, reaping much good and benefit by the persons abovesaid did use them exceeding kindly,& many times proposed diverse questions of the law unto them, wherein he had good resolution; and having sequestered himself from the multitude of private affairs, wherewith he was often molested, having attained to a convenient dispatch& conclusion of them, he allotted certain times of purpose for the hearing of matters of law handled and debated: and sometime in his parlour, and chamber, sometime in his garden, and gallery, he would give diligent ear& attendance to such disputation& discourse, having set down certain rules,& as it were, a good platform of the exercise. The rules were but 2. in number, which were great in weight. 1. He willed thē to exclude all caiuillng, to yield unto the better reason, and with joint endeavour to search out the truth of every matter proposed: for he said that nimiùm altercando amittitur veritas. 2. he would not( sithence comparisons were of al things most saucy and malapert) that they should enter into any disdainful comparison of the laws which they professed, but should rather use them as brethren, then as enemies,& should reverence the greatness of knowledge, where they found it,& pardon the weakness when they had discovered it, without bitterness of tongue or venom of heart, assuring themselves that the meanest of these laws might in some particular things profit the greatest of these Lawyers: for as he observed the sayings& doings of Cato in stead of a Law, so one of Catoes sententious and judicious oracles he had always in his mouth. Alienā artem temerè ne contemnito: having by these rules as by limits bounded the order& maner of their conference, he proposed certain things distinctly,& in order to be discussed, which were thus by him marshaled. Because in range of all human affairs subject to the contemplation of law, contracts haue from ancient time been the ground of vesting& altering the property of things, he would therfore first haue thē to begin with a discourse of contracts:& because there be two things following after contracts concluded much in use, namely, 1. a gift or grant; 2. a bargain or sale, he would therefore of these two haue thē diligently to argue:& because gifts haue been often made to raise& create a tenor, his desire was that in the 4. place they should discourse of Seignories and services:& for that grants or gifts be made sometime jointly, or by moieties, he would haue them to speak somewhat of ioyntenants, or tenants in common: and because they that haue things by gift& grant do often exchange them, his mind was they should handle the nature& manner of exchanges, and sithence the last disposing of all worldly things is by the last will& testament of the party, he therfore requested them to be painful herein: after as touching the conueiances of lands, which be in the realty he would haue them to proceed to personal things, as namely to treat of borrowing and lending, and of the bailement or delivery of goods and chattels: because such things were much in use. And because these and the precedent matters were many times occasions of action, therefore he thought it convenient that they should speak somewhat of the form and maner of ordinary proceeding in matters of law, and when they had finished this task abovesaid, he prayed them to discourse of penal and criminal matters, of common trespasses and wrongs, and other offences against the peace, the order of which he would hereafter set down. The method of their conference being thus digested, and respite of study and deliberation being given, Nomomathes thus spake to Codicgnostes.   

The first Dialogue. Of Contracts.  NOmomathes. 
I pray you Codicgnostes let me know whether any persons are by law prohibited to make any contract: deliver your knowledge herein, and let your companions speak to this point, and others that I shall propose, when and as far forth as shall seem good unto them.  Codicg. 
The chief ground of contracts is consent, 
L. 1. ff. de pactis.& in c. Antig. Eo Tit. de pact.& I. consens. ff. de action.& oblige. I. 1. ff. manda. Et I. ficut C. de actio.& obli.  so that the persons which contract must be able to consent, 
1. The ground o● contracts. & consent groweth of knowledge and from a mans free will, directly by sufficient understanding for he that knoweth not what he doth, 
2. T●e contracts of infants, persons d●stracted of their wits, and religious persons, when her or how far fo●th they be good.  cannot be said to bee wiiling to do a thing: as a man that is distracted of his wits: or an infant that is within yeares of discretion, 
l. 5. ff. ad. leg. Falcid. l. 12. de leg.  and the contract or covenant of such persons is not ratified by oath, which by law are forbidden to contract, 
l. non dub●●● C. de legib.  as monks and Friers and such like religious persons.  Canonologus. 
Indeed such persons are said in our law to be mortui mundo, dead to the world, 
16. q. vltim. c. fi.  and they cannot live without their Cloister no more then a fish without the water, 
16. q. 1. plac.  and he can haue nothing private or proper to himself, and therefore the rule of the Canon-law is Monachus habens aliquid de proprio sepeliri debet in sterquilinio, 
De sta. mo. c. 2.& C. ad monaster. Ca. 1.& 2. de postula. 16. q. 1. monach. &c. religious. de procur. in clear.  and he cannot be any mans advocate in a cause, or any many proxy without the consent of his Abbot or sovereign, and that must be to the use and behoof of his monastery, and the like law is of Friers. 
Cle. dud. de sepul.& Cle. exiti de parad. de verbo fig   Nomomathes. 
But is there no difference in the Lawe, betwixt the contracts of infants and the contracts of monks and Friers?  Codign. 
Yes very great: 
3. Monks are absolute● {pro}hibited by the civil ●aw to make any contract: infants are disabled with a certain qualification.  For monks and Friers are prohibited by law to make any contract, so that as I haue abovesaid, their contract cannot be good, though it be confirmed by oath: But infan are not jure prohibiti, but inhabiles ex juris dispositione, and therefore their contracts may by oath be established. 
Authent. sacramenta puberum cum tota sua materia. C. fi aduer. vendit& in corpore vnde sumitur.   Anglonomop. 
As the former laws haue very greatly disabled monks and religious persons, who are tied to a certain rule: so our Law hath very much diminished their ability, as to their intermeddling in secular matters. In a Scire facias brought by a Prior against a person out of a recovery had against his predecessor, 
4 That by the Common law Priors under the obedience of a sovereign,& which were datife and remouable, could not implead or be impleaded without the 1 sovereign, unless it were by special custom.  it was held that the defendant should not be estopped by the admittance of his predecessor in the first action, to plead in this Scire facias that the prior was a monk professed under the obedience &c. and was datife& removable, 
4. H. 6. 2.  for though it haue been held that a prior perpetual may prescribe to implead and to be impleaded without his sovereign, yet by common intent a prior datife and removable at the will of the party shall haue no action by such usage, but if he will haue any plea he must show some special matter, 
39. E. 3. 44.  and it hath been said that the knights of S. John of jerusalem had their possessions several, 
5. The same Law was of the knights of S John of jerusalem.  yet they could not use an Action without their prior, 
32. H. 6. 5.& 31.  and a prior which was presentable, and had covent and Common seal, could not before the dissolution of Abbeys and Priories charge his house in perpetuum, without the assent of the Patron and ordinary, neither could he haue the writ De aduocatione decimarum, nor a juris vtrum, 
12. H. 4. Stath. Tit. Charge.  and a writ was abated being brought against a prioress, because the Prior of S. Iohns was commander of the house whereof shee was prioress, and because she was made prioress by him, and was under his obedience, and removable at his will, notwithstanding that shee had covent and Common seal and had her possessions several, and was wont to Lease the land for term of yeares, 
12. R. 2. Nonabilitie 4.  and if a contract bee made with an Abbotte and his monk, the Writ that hath been grounded vpon this contract hath been brought against the Abbot onely, 
33. E. 3. Br̄e 913. 2. H. 4. 21.  and so hath a writ of Detinue been brought being conceived vpon a delivery of goods made to the monk to the use of the Abbot, 
Ibidem.  yet it hath been thought that an action will lye against a monk, if he bee not in subiection to some sovereign. 
14. H. 4. 37.  But it hath been taken for a general learning with us that Monks and ●riers,& Canons professed& the like, could not grant any thing, 
14. H. 8. 16. 2. R. 3. 5. 32. H. 6. 31.  neither could they be grantees of any thing, 
5 H 7. ●5. 19 H. 6. ●5.  neither are they capable by way of devise, 
Perk. ●it devis. sect 537 & the covent of an Abbey or priory can yield so little advantage to the house in matter of purchase, that if in former times land had been given to an Abbot and to his covent, this could not be good save onely during the life of the Abbot for the want of this word( successors) 
11 H. 4. 84. {per} Curi.  but touching the ability of infants in contracts and purchases the Lawe is diuers according to the diversity of cases, and if an infant do buy of any a coat or necessary vestment for certain sum, or if he make a covenant for his meate paying 12. d. a week according to M. Paston his opinion, this covenant is voided, 
6. The infant contract for his meate apparel, and necessaries is good, if he be of the age of fourteen years  yea and if he make a bonde for it, the bonde likewise is voided: but Markeham thinketh the contrary if the infant that is so bound be of the age of fourteen yeares, 
21. H. 6. 31. 18. E. 4. 2. Perk Grau. 4. D. 5. diar. 2. fo. 113.  and by M. brooks opinion this is the better Law, 
Br. Labourers 30.  and if an infant lease land for term of yeares rendering a rent, 
7. That which an infant doth without actual ●●crie may bee au ●ded by act●on without en●re or ●e●sure b●t tha which he do●h ●y actual livery cannot be auoid●d without en●re or sei●●re.  or do sell a horse or any other thing he may choose to haue an action of debt for the rent reserved vpon the Lease, or a writ of trespass for the occupation of the Land, and so he may haue an action of trespass for the occupation of a thing sold by him: and if an infant do give to one a horse without actual delivery of the horse into his hands at the time of the gift and the donee taketh the Horse by reason of this gift, the infant may hauean Action of trespass against him, 
18. E. 4. 2.  and if an infant make an obligation or lease in writing and inseale it, and deliver it to a stranger as a scroll to deliver to him to whom it is made when the infant cometh to full age as his deed, and the stranger doth it, this is void, because it is done by a commandment, which is voided, 
27. H. 7. 6.  for the commandement or assent of an infant is voided in law, 
11. Ass. pl. 14.  so that a difference is to bee held, where an infant passeth away a thing to another by livery in facto and where not: for in the one case the gift or conveyance is voidable onely, in the other it is voided to all intents. For if an infant make a lease for term of yeares, or a lease by dures, if the lessee enter, the infant may haue an assize, but if the infant make a feoffment and deliver seisin accordingly, he shall haue no assize, for by the livery of seisin the feoffee had a possession at will at the least: but if goody make a letter of Attorney to deliver seisin he may haue an assize, 
9. H. 7. 24.& 2. Mar. 109. Dyer. Rug.  but where any man doth a thing which is for the profit of an infant he shall not bee punished as a trespasser, as if an infant command one to repair his houses and he doth it, this shall excuse him in an action of trespass. 
13. H. 7. 17. {per} Kebl.   Nomomathes, 
You haue spoken sufficiently  Anglonomop. 
of religious persons and infants, and of contracts made by them now I pray you show unto me whether the contract of the seruant shall bee accounted in law the contract of the master. 
●. whether th● contract of the ●eruā● sh●ll he ac●omp●ed in law ●he contract of the masthr.   Anglonomop. 
It hath been held in our books that if a man haue a bailiff or Seruant who is known for his seruant, 
1 That ac●ending to the common Law the m●ster shal be bound by t●● contract of a known seruant, i● the thingi Merchanddsed do come to his use: and he shall be bound by the contract of his factor ●hough the goods never come to his pessission  if he send him to fairs or Markets, to buy, to sell, or to do other things markettable, his Master shall bee charged with the payment, if the thing which is Merchandized do come to his use, 
2. R. 2. debt 3. {per} Curi.  and it hath been likewise held that if a man send his boy to the Market to buy things for him, and he buyeth them, and bringeth them to him, and the vendor bringeth an action against the master, and averreth that the goods came to his use, he shall recover against him in the action, 
4. E. 2. 16 r.  and Pigot his opinion is that if one make another man his Factor to buy things for him, if he buy merchandise of any, the master shal be charged by this contract though the goods never came to his possession, because he hath given unto him such a power, 
8. E. 4. 1.& 9. duchess de Suffolks case, per Pigot.  But in the eighteen year of King Edwarde the second a man was bound in a Recognisance to S. to pay at a certain day, at which day the Reconusor came and proffered the money in Court, 
3. The act of a mans Attorney or his general receiver doth not bind the master without special warrant.  and because S. was in the Kings service there came one A. as his general attorney, and said that he was ready to receive the money, and shewed forth to the Court a Warrant of attorney, but because the Warrant of attorney was that he should be his attorney In placitis& quaerelis ad lucrandum& perdendum, and the Recognisance was a thing already adiudged and determined, and therefore could neither bee plea nor quarrel. therefore it was thought that his Warrant did not extend to receive money, 
18. E. 2. execute 245.  so in an action of debt brought vpon an Obligation the defendant did confess the dead, and said that he had paid the sum to one C. the general receiuour of the plaintiff, and he had thereof an Acquittaunce which he shewed forth to the Court, but because he had acknowledged the Obligation, and had shewed no Warrant of the plaintiff, to pay the said money to C. so that the acquittance which was shewed, could not bee the deed of the plaintiff, The Court awarded that the plaintiff should recover his debt and his damages, 
5. E. 3. 63.  but as to a mans seruant I take the Law to bee that his contract shall extend to his master, as well for prejudice as advantage, And therefore if a mans seruant sell to one certain cloth, and warrant it to bee of a certain length the Action will lie against the master onely, and not against the seruant, and if A. do assume to cure B. of a wound and he sendeth his seruant to B. to lay medicines to the wound, whereby he is hurt and impaired, B. cannot haue his Action vpon the case against the servant but against the master, 
11. 4. 6. Choke& Brian  and of late-time the Lord North being chancellor of the Augmentation court, delivered an Obligtion made to queen mary to his servant to deliver over to the clerk of the Augmentations, the Obligee and the servant did conspire and cancel the Obligation, the master was held in this case to bee chargeable. 
5. Mari. 16. 1. Dyer per Iustitiar̄.   Nomomath. 
You haue satisfied me touching contracts made by a mans servant, now I pray you show me whether a contract made by the wife in the behalf of the husband will bind 
1. Whether the wises contract made in the behalf of the husb●nd, will bind the husband.  the husband.  Anglonomoph. 
In an action of debt brought against husband and wife, and another, vpon a contract made during the coverture, 
2 That by the common Law an action of ditte b ought vpon a co●ra made by the w●fe f●●●he b●ho ●e●uly against ●he husband without naming the wife.  for the woman it was said, that a feme covert cannot make a contract, wherefore iudgement was demsunded of the action, and the husband and the third person pleaded the same matter to the Writ, and they could not be admitted to pled to the writ, because the woman had pleaded to the action: but they pleaded the matter abovesaid in bar of the action, and wear received, 
34. E. 3. brief 923.  and if the husband and the wife do borrow money, this shall bee accounted the borrowing of the husband onely, 
33. E. 3. brief 913.  and if a mans wife do buy goods of one to the use of hir husband, the wife is not in such case to be name in the Writ, that is to be brought hereupon. 
2. H. 4.21. {per} Markeham.   Codicgn. 
By our Law, 
3 Th●t by the Ciui● Law the husband is in no foyt to and ch●rged by the co●tract of his wife.  no mans contract made in the behalf of another, will bind the other, but such a persons contract who may bee bound for the other, 
ff. C.& ff. de pact. n congr. Tit.  t  Nomom. 
You haue shewed unto me abundantly, how contracts may stand good, and how they may be infringed by reason of the persons- which are parties or agents in the stipulation or contract and efficient causes thereof, by reason of their ability or disability possitiuely set down in Law, now I would haue you proceed to declare how by the material causes of contracts, they may stand or fall.  Codicgn. 
A contract hath a material substance whereof it is made, 
1. How contracts may stand or fall by their material ca●ies, o● the defect of them.  as well as other things, and the material cause of a contract is the thing for which wee do contract: for as in mechanical and artificial things there is required some apt matter, 
D. L. adeo§. cum quid.  whereof a thing may be wrought, so in contracts and covenants as well these which are determinable by the Law of Nations, as these which are sentenced by the civil Law and other Laws, to the end they may be well perfited and concluded, some material cause is requisite. 
ff. de verb. oblige. l. intrr Stipulant{ur}§. sacrament{ur} de praescriq̄ verb. l. insula.   Nomum. 
Why, are any contracts ordered by the Law of Nations? 
1 Some contracts a co●d●red by the law of nations.   Codicgn. 
Yea, for by that Law an ambassador may be impleaded for such contracts as he maketh during the time of his ambassage, 
2. An ambassador may acc rding to the civil Law bee impleaded by the Law of nations for a contra● made whilst he is ambassador.  left( as julianus saith) he presume to take other mens goods with him into his own country, 
L. 25 D. de iud.  or( as Paulus reasoneth plainly and pithily) least men fearing to contract with them, if they be not in this regard subject to Law, they bee excluded from all commerce and intercourse of bargain: 
L. 24. de min. l. 11. ad Vell l. 12. de  and this Law is supported by that excellent rule of equity, that no man ought to grow richer by another mans loss, and if one that is no ambassador do contract with one, and after bee made an ambassador, yet he is now chargeable with the contract. Likewise an action will lie against an ambassador by the Law of Nations if he covenant to perform a thing when he is ambassador, if it so fall out that the charge and credit of ambassage be committed unto him, 
L. 3. D. de lega. African. L. 2. p. 1. de iud.   Nomom. 
I am very desirous to know Codicgnostes whether contracts made with pirates and with robbers by the high way are available and of force by the civil law, or the law of Nations: 
1. whether contrancts made with pirates or robbers in the highway be good in Law   Codign. 
I do not think that pirates and robbers are to haue advantage by any Law in matter of contract, because they haue cast aside all care of human society, and seek to reduce the world as much as lieth in their power, to the pristinate wildenes and sauagenesse of nature, when men did live like beasts, and as Lucretius saith 
Lucret. li. 5. , 
Quod praedae obtulerat fortuna cuique, ferehat  
Sp●nte sua sibi quisque valere& vivere doctos.  And such persons may not enjoy the benefit of Law to which they are enemies, 
Paul. l. 63. ad leg. Falc.  To such men which haue withdrawn themselves from the communion and society of men, 
2 that pirates and robbers are not to haue advantage of law in matters of contract.  and( as 
Flor. lib. 3.  Florus saith( haue brooken the league of mankind, why should the Law of Nations, which is nothing else but the communion and league of Nations, extend any favour. pirates( as Plinie saith) are enemies to all men living 
Plin lib. 2. cap. 49.  and therefore Cicero avoucheth, that if thou dost not bring to robbers of pirates, the ransom which thou hast promised for thy life, there is neither offence nor fraudulent dealing in thee, no though thou hast promised with an oath 
Cicer. pro leg. Manil.& 3. de office. . Therefore some do wonder that D. Hotoman dare affirm 
Hotom. 7. Illust. question , that the Law of Nations doth extend to fugitives and robbers, and his chief reason is, 
3 that D. Hotoman erreth g●eatly●i maintaining that pirates& robbers may lawfully con-  because there is no Lawe which doth interdict and forbid to covenant or contract with them, and such things in his opinion, as are not verbally forbidden, are implicatively permitted. This reason is of no validity; for it may be implicatively forbidden,& in that they may be enemies to all men, and do spare no man, they ought not to protect themselves by the Law of Nations, which is the Law of all men: The question is not what may be done unto them, or how many men hath dealt with them; but how by the rule of equity and soundness of reason they ought to be dealt with. For to dispute of Law is to dispute of a public bond whereby wee are bound and obliged, but we are not bound to such lawless, disorderly, and incorrigible persons, by any common respect of duty.  Nomo. 
I will not trouble you farther Codicgn. with more ample discourse of this matter, but will rest well paid with that which you haue already spoken. Now I long to hear somewhat of Aoglon. touching the material causes of contracts.  Anglonomo. 
A consideration which is the proper material cause of a contract, 
1 That by the common ●aw a consideration is the proper material ●a●se of a contract,& that it may be expressed or implied.  may in the concluding of bargains be either expressed, or implide: x prest, as if I buy a Horse of you for xx. s. you may keep the Horse till I haue paid you the money, 
10. E 4.10. & M. Choke is of opinion that if you buy of one a horse in Smithfield for a certain sum of money, and do not pay him the money presently, he may sell the horse to any other in continent, and you cannot haue any remedies against him; for otherwise he might bee compeled to keep his horse for ever against his will 
17. E. 4.1. per Choke.  For it is implyed in the bargain that the vendee must pay the money incontinent, otherwise he cannot haue the thing sold, but if the payment bee respited unto a certain day vpon the contract, this is good enough, so that the money be payed within the time perfixed, 
21. H. 7. 6  and 28. H. 8. 
2 That a contract is not good without money paid in hand o● a certain day of payment limited.  it is positively set down for Law that a contract is not good without present payment unless a certain day of payment bee limited, so that the one of them may haue an action of debt for the money, the other a Writ of Detinue for the wears: 
28. H. 8. 3 Dyer.  An implied consideration is when the Law itself doth intend and enforce a consideration, and therefore the host of a common inn may detain a mans horse if he will not pay him for his horse meat: And so if a tailor make a gown for any man, he may detain the gown till he be payed for his labour. 
5. E. 4. 2.   Nomomat. 
Doth not the defect of form in a eontract frustrate and defeat the contract?  Codicgn. 
Yes: 
1 wh ther the defect of form do destroy the contract.  for as the substantial form in material things is necessary to the essence and constitution of such thing: 
ff. ad extrib. l. julian. s.& l. falfi. l. si. is qui. ●. quidem.  so in contracts a certain solemnity and concurrence of circumstances is required for the perfecting of them, 
2 Tha● sol●mpnitie and co●cur e●ce if cir u●sta●ces is req●i●ed in c n●ract● by the civil law.  as their natural and proper form: 
ff. de verb. obligat{ur} l. sciend& l. continuus in princip. Eo. l§. si quis ita.  q and without such ceremoniousnesse the contract is of no forcē.  Anglonomo. 
Our law likewise requireth form either in pronouncing the words of the contract, or else in observing some other circumstances belonging to the contract. For the first, if a man promise to another xx. li. with his daughter in marriage, if he marry the daughter and the money be not paid he shal not haue any action of debt, or action vpon the case at the Common Law, 
3. That matrimonial Contracts, if there be no assumpsit in them, are to be decided by the ecclesiastical Law: if there be an assumpsit, by the common law.  but he must sue for this money in the spiritual Court. 
Fitz nat. br̄ 44. 2. 14. E. 4. 6. Reg. 46.& 48. 15 H. 3. Prohibition 22. 16. H. 3. Prohi. 24.  For here is no good form of contract: and( as Master Bracton saith) Matrimonium est principal,& eiusdem juris, id est inrisdictionis esse debet accessorium. 
Bracton lib. 5. cap. 16.  And therfore if a man by reason of matrimony or Testament do aclowledge in a spiritual Court that he ought to pay to one a hundreth marks, or some other sum at a certain day, if the money be not paid at the day accordingly, he may bee sued for this money in the Spiritual Court,& no prohibition lieth, 
Fitz. nat. br̄. 41. b.  but if in the former case he had promised one x. li. if he would marry his daughter, if he do marry his daughter and the other will not pay the money he may not sue him in the spiritual Court for this money, but at the Common Law, 
Fitz. nat. br̄ 44. a.& 22. Ass. pla. 70. {per} Tho.& 1. H. 3. Prohibit. 22.  for now it goeth in form of contract, as for the other matter where form is required in observing some other circumstance in the contract, that may appear by this case: If a fellow sel a Horse without covin in a Market overt, this doth alter the property, and the very proprietary cannot haue restitution of the horse notwithstanding the Statute of 21. H. 8. cap. 11. but if he had sold him out of a Market overt, the property had not been altered. 
33. H. 6. 5. 18. E 4. 24. 7. H. 7. 12. Crompt. just. de Peace 172.   Nomom. 
I will trouble you no further in this matter, but will proceed to inquire somewhat touching Gifts and grants.   

The second Dialogue of Gifts and grants.  NOmomathes. 
In handling the learning of Gifts and grants, 
1. What things may be given or granted.  I think it most fit in the first place to bee inquired what things may be given or granted: wherefore first I pray you satisfy me in this.  Codicgn. 
A man may give all such things as an other may receive: 
l. in aedibus§. si. ff. Eo. Tit.  for dare& accipere sunt correlatiua: 
2 That all things that li● in commerce and may be rece ued may be given.  and all such things may bee received which lye in commerce.  Nomom. 
Then things consecrated and ecclesiastical may not be ●liened, because they lye not in contract.  Codicgn. 
Things ecclesiastical though they be not consecrate, 
3 That things ecclesiastic●ll tho●gh they be not consecrate cannot regularly be granted.  cannot regularly be given or granted 
Cap. 2. de donation.& Eod. Tit. de re. ecclesi. non alien. in antiquis 6.& Cle.& in c. sine except. cap. si quisquis 12. q. 2.& in l. Iubemus cum suis authen. C. de sacrosan. eccle. , and I did use this word( regularly) because where such alienation may bring profit to the Church, it shall be of force 
In dict. jur. .  Anglonomo. 
In our Law a Writ of Contra formam alienationis lieth where a man gave lands or tenements to an Abbot or house of Religion before the Statute of Quia emptores terrarum, to hold of him in frankalmoigne, and after the Abbot with the covent did alien the same land in fee to another; 
4 That if an Abbot alien land● given in frank almogne to his house, the donor might haue a Writ of Contra foreman collationis.  now he that gave this land or his heir may sue this writ of Contra formam collationis against the Abbot or his successor, but not against the tenant of the land, but when he hath recovered the land, he may sue a Scire facias against the tenant of the freehold 
Fitz. na. br. 210. f.  and this Writ of Contra formam collationis lieth not, though the Abbot doth alien in fee, unless the Abbot& the covent do alien in fee 
19. E. 3. Contra formam collationis. 5. Fitz nat. br. 211. c. , and if an Abbot with the covent do alien an advowson in fee, at the next avoidance the foundor or his heir may present to the advowson, because they cannot in such case sue a Contr formam collationis. 
20. E. 3. Cóorm̄ coll. 6   Nomom. 
Let me know I pray you how many kinds of Gifts there be.  Aoglonomoph. 

1 The diverse kinds of Gifts, some being free some compensatorie.  They be of diverse sorts: some are called free Gifts, which proceed merely of a mans good will and benevolence: others may be called Compensatorie, because they are given for some cause or consideration: Gifts or gra s of the first kind are such as I shall now recite out of our books. first, the queen may grant to one land ex mero motu, 
2 What is wrought by the queens grant ex me●o motu.  and though her Highnesse do rehearse some consideration in the patent of her grant which is not true, as if the consideration bee, that whereas the grantee hath done her majesty good service on the Sea, or beyond the Sea, or in her majesties warres, or in some other business: though the consideration be merely supposed and not true, and therefore no good consideration in Law, yet the words ex mero motu do make the grant good 
26. H 8. 1. per Fitz. , and whereas the queen ex certa scientia,& mero motu doth confirm a grant, supposing that a grant was made before, where in truth there was no such thing, it is held that her highnes shall be concluded to say, that no such grant was made: otherwise it had been if this word ( informamur) had been used in reciting the grant. 
9. H. 7. 2.  For if her highnesse grant any thing vpon the false suggestion of the party, this grant is void, 
3 What is wrought by her majesties grant by words of Informamur.  because she is deceived in her grant, 
11. E. 4. 1. per Littlet{ur}.  and wee haue a rule: Si suggestio non sit vera, literae patents sunt vacuae. 
3. H. 7. 6.  For when the grant is made vpon the suggestion of the party, the words of the grant shall bee taken strictly, but when it is ex mero motu it must be construed and interpnted according to the Kings intent, and as favourably for the grantee as reason will permit 
21. E. 4. 25. Abbe de Walthams case {per} brown& Genney. , and if a common person do without consideration give to I. S. his his goods( indefinitely) al his goods do pass, and if a common person do by deed enrolled enfeoff the queen of his lands without any consideration, the queen shall be seized to her own use, as having such prerogative in her person, that shee shall not bee seized to the use of any other. 
28. H. 8. 7. Dyer Bokenhams case per Knightley.  Gifts made vpon consideration may be explained by cases likewise drawn out of our books, though in a common persons case the consideration which is mentioned be false, yet the use shall bee to the feoffees, as appeareth by Wilkeses case, 
4. Whether vpon a false considera. expressed. use shall be raised in a common persons case.  who reciting by his dead falsely that in consideration of 700. li. payed, he had enfeoffed A. and B. to haue and to hold to them and to their heires, to the proper use& behoof of the said A. and B. in perpetuum: afterward by Office it was found that Wilkes was seized of the land, and that he held in Capite, and I. was found to bee his heir and of full age: yet it was held that the heir should not be received to aver the consideration false against the acknowledgement of his ancestor: 
1. Eliz. 169. Dy. Wilk. case.  and so it hath been held in Villiers his case, that where money is the consideration expressed another consideration shal not be averred, 
5 That a consideration may be averred which is not repugnant to the use expressed.  neither shal a Causa matrimonij praelocuti be averred where another consideration is expressed, but where no consideration is expressed, there a consideration may be averred: or where the consideration averred is not repugnant to the consideration expressed in the dead. 
4. Mar. 146. Dy. Villier̄ case  And though the consideration bee not valuable, yet it may be a good consideration to raise or to alter an use: for in Sharingtons case it hath been adiudged, that the affection of the father for the provision for the heires males which he may beget, and the affection which he hath that the land may remain in his blood and name, 
6 That an use may be altered by a consideration not valuable.  be causes sufficient to make uses in the land, for( as it is there said) Naturae vis maxima,& Natura bis maxim. 
8. El. 298. come: Sheringtons case.  And so betwixt brethren pro fraterno amore is a good consideration to raise an use, 
13. El. 302. Dyer.  and a man levied a fine to the use of himself,& such wife or wives as he should mary, and after he took to wife A. she shal take in jointure being by way of use, otherwise it had been by estate executed. 
10. Eliz. 274. Dy. per Wray, Mead, Plowden,& Ownslaw,& 3. Eliz. 190. Dame brays case.   Canon. 
By our law a man cannot give any thing to the common weal without consideration, but to a private person he may. 
li. hoc jure in princi. ff. de donat. Gl. in d. l. hoc jure.& l. Campanus ff. de oper. libert.   Canonol. 
By the Cannon Law nudum pactum doth bind the party, especially being confirmed by an oath: much more a bare donation 
c. de pact'. .  Nomom. 
As to the point of consideration we shall better perceive the strength and properties therof, 
1 In what case● graunt● shal be taken most beneficially for the grantee.  when we enter into discourse of bargains and sales, now let me know in what cases, and how far forth grants shall bee taken most beneficially for the grantee.  Anglonomoph. 
When a grant is non-certaine, 
2 That a grant non-certaine must be taken m●st strongly against the grauntor.  it must be taken most strongly against the grauntor; for if a man grant an annuity out of certain land, and he hath no land at the time of the grant, yet the grant shal charge his person 
9. H. 6. 12. {per} Babingt{ur}. , and if a deed of grant be good in parcel, and for parcel not, 
3 That a grant may be good in p●rt, and for parcel not.  that which is for the advantage of the grantee shal be taken to be good, as if a man grant unto me an annuity, proviso that it shall not charge his person, the proviso is void, and the grant is good 
20. E. 4. 8. {per} Towns. 14. H. 4. 30. {per} Hank. , And if an annuity be granted pro consilio impendendo, though the grantee be well skilled in diuers sciences or faculties, yet counsel shalbe given in that faculty only, which was intended at the time of the grant 
41. E. 3. 6. annuity 19. , But in some cases the grant must be construed according to a reasonable and indifferent intendment, as if a man make a lease of a house, so that the lessee may make his profit of the houses within it, the lessee cannot in this case take down or demolish the houses, nor make waste in them, for the intent was not so, 
17. E. 3. 17.  but if the King grant to me visum franciplegij in omnibus terris meis,& feodis, I cannot haue this in my lands and tenements, 
4 How the Queens grants and licen●ies shall be construed and interpnted.  which I shall afterwards purchase, 
38. H. 6.10.  But if the king grant to a man that he and his heires shall bee quit of tax for their lands which they haue, this is a good grant though there bee no tax due at the time of the grant, 
Ibid.  And so is the Law of Tenths and fifteens 
19. H. 6. 62. 21. H. 6. 43. 21. E. 4. 45. , and he to whom the King granteth a licence may not varie from the proper sense& the significancy of the words. 
18 E 2. Fines 124.  And if the king before the dissolution of Monasteries had licensed an Abbot and his covent to make a feoffment, if the Abbot onely had made it the feoffment had been void, 
21. H. 7. 8.  And 3. Ed. 3. the King licensed one to levy a fine of the mannour of Dale, to the intent to maintain two chaplains, and he would haue levied the fine omitting the chaplains, but was not suffered, 
3. E. 3. 5.  and 3. Edward 3. the licence was to levy a Fine of the Mannour of Dale, and he would haue levied the Fine with a foreprise or exception of certain acres, parcel of the Mannour, rendering rent, but was not admitted to it, because it could not stand with the licence, which was that all the Mannour should bee charged with the rent, 
30. E. 3. 17.  So if the queen licence one to make a feoffment by deed, he cannot make i● without deed, 
21. H. 7 8. {per} Frowike.  and this Lawe holdeth likewise in a common persons case, for if he that hath a Warrant of attorney to deliver seisin absolutely, do deliver seisin vpon condition, this is a disseisin to the feoffor 
12. Ass. pl. 24. , And a grant is not to bee favoured contrary to the evident& perspicuous sense of the words. 
3 That a grant is not to be favoured contrary to the manifest sense of the word.  For if a man grant to another a load of wood to take in his soil every year, and the grantee surceaseth the two first yeares, and the third year he taketh three loads, he is a wrong doer for two of them: so if a man grant to another a common for three beasts yearly, and he taketh nothing the two first yeares, he shall not haue common for three beasts the third year. 
27. H. 6. 10.  The advowson of the hospital of Saint Katherines is appendent to the Mannour of B. the hospital being void the queen granteth manerium ac omnes aduocationes cumpertinentijs, the present presentment doth not pass: 
13. El. 300. Dyer.  for it is fructus aduocationis, and not the advowson itself. 
11. El. 283. Dyer.   Codicgn. 
The words of a grant are to bee taken most strictly against the grantor, because 
Phil. Deci. in Comm. ad Regul. jur.  he might haue expressed his meaning in more full, large, and manifest words.  Nomom. 
Now resolve me whether a grant that is not good at the first may bee made good by matter ex post facto.  Anglonomop. 
In no sort: 
1 That by the common law a grant that is not good at the first may not be made good by matter ex post fact●, neither by the civil Law.  for if there bee lord and three ioyntenaunts, and the lord granteth the services of one of them to a stranger, this is a void grant though the same tenant do attourne, and survive his compaignions. For no attournement can make an evil grant to bee good, 
5. E. 3. 34.  and if a man lease land to the husband and wife during their lives, and after granteth the reversion of the land which the husband holdeth for term of life, and then attournement is had, the grant is void, and the attournement also. 
13. E. 3. Bro. Iointen. 63.  And if a man be bound to a feme sole, and a stranger releaseth to the obligour, and after marrieth the feme, yet the release is not good. 
l. 15. E. 3. feoffment. 63.  So it is if in ancient time a monk, friar, or Cannon professed, which was no sovereign of an house, had granted to one an annuity, this was a void grant, though he had been after dereigned, or made sovereign of the same house, or some other 
2. R. 3 5. .  Codign. 
As that which is lawfully done cannot be made voided to all intents, so that which is altogether voided at the beginning cannot be strengthened by continuance of time 
Phili. Decr. Comment. ad reg. jur. .  Nomom. 
Let me ask you this question Anglonomoph. 
1 Whether a tenant at will may grant over his estate.  whether may a tenant at will grant over his estate or no, especially if he in the reversion do after agree to it.  Anglonomo. 

2 That the estate of the tenant at will is in maner no estate.  I think not: for it is not properly an estate because it wanteth certainty, 
27. H. 6. 3.  but if my tenant at will be outed by a stranger, he may re-enter without my commandement: for the entre of a stranger doth not determine my will, 
11. E. 43:  and another reason why he cannot grant his estate, is because his estate dependeth as well vpon his own will, as the will of the lessor, and if he lease over the land, his will as to that intent is determined, and by consequent his estate, 
22. E. 4. 5. per Brian.  and his estate is such a non-estate in the eye of Law, that he cannot haue aid of his lessor, 
12. E. 4. 5.  and if the heir accept a rent reserved vpon a lease at will made by his father, this cannot make the lease good, because it was void before, no more then his acceptance of a rent reserved vpon a lease for yeres which is determined by reentrie, can make that lease good. 
14. H. 8. 11.   Codign. 
The estate of such a tenant is none at all in our law, unless he should set down his will in certain who demiseth. 
l. qui se patris C. vnde liberi.   Canonologus, 
So it is likewise in our law. 
C. de summa tri.& fide Cathol. l. 1.   Nomom. 
I will not insist any more vpon this matter, but will pass to the consideration of bargains and sales.   

The third Dialogue of bargains and Sales.  NOmomat. 
I will not ask ye what things may be sold, 
1 What things are forbidden to be sold.  least perhaps you answer me such things as may bee bought according to your answer in your last discourse of Gifts and grants, but I would haue ye show unto me what things are forbidden to be sold.  Canon. 
Things consecrate& religious may not be sold, as Monasteries, 
2 That by the Canon Law things consecrate and religious may not be sold.  and other places deputed to religious uses whasouer name they challenge, as Temples, Hospitals, chapels,& such like, 
C. de Xeno. docti. co. Tit.& C. de Epis.& cleri. in l. orphanatroph.& 42. distinct' oratorium.  and that is accounted a religious place, in which a mans body or head is butted, 
ff. de reli.& sump. func.  and therefore if a man be butted in an orchard parcel of a mans farm, that becometh religious, and it may not be pledged or sold, but demised it may be. 
C. quae res obligat. possunt l. 1. l. quid ergn.§. said si mortuum ff. de leg. 1.   Anglono. 
Of this matter I haue spoken I hope sufficiently in the beginning of our second conference or Dialogue.  Codign. 

3 The poisons by the civil law are forbidden to be sold.  By our Law evil poisons are forbidden to be sold. 
l. quod saepe§ veneni. ff. de contrah.   Nomom. 
Why say you evil poisons? as if any kind of poison can be good.  Codign. 

4 That there be some poisons which be medicinable and profitable,& the prohibition extendeth not to these.  Yea, there be some good and sit for the expelling of diuers diseases, though they be not mixed with any other matter or thing, which is medicinable, so neesing wort doth cure frenzy or madness, wolfebane the biting of a scorpion, quick silver the scab or ytch, and arsenicke is profitable against the plague, as Mercurialis avoucheth, and sheweth further that many artificers do use poison, and many creatures do eat and live vpon poison, and pustules be cured by poisons, and poisons were before the fall of Adam, 
Mercurial. lib. 1. de vene. c. 3.& 4.  yet there are some kinds of poison which are evil in themselves,& may not be used alone: and though Plato amongst his other laws promulgeth, that no man ought to sel or any way intermeddle with poison. 
plate. li. 11. de legi.  And Galeu doth condemn Orpheus who taught the use of poisons, 
Galen li. de antid. c. 7.  and reporteth that the inventor of a poisonful herb was therefore punished, 
Galen li. de purge. me:  yet because there be some which are profitable alone, 
5 That some poisons are profitable alone, some with the mixture of other things. & other some( as our law speaketh) adiectione alterius materiae, 
Cai. in d. li. 3  therefore poison generally and absolutely is not forbidden to be sold by our law.  Anglonomoph. 
By our Lawe corrupt victual is forbidden to be sold, and leather not sufficiently tanned. 
13. H. 4. 1. 11. E. 4. 7. 1. R. 3. 1.   Nomo. 
Let me hear of you some special kinds and cases of bargain and sale out of your Law, 
6 What things are forbidden to bee sold by the common Law.  and some good diversities, whereby me thinks the knowledge and understanding are greatly enlightened and increased.  Codign. 
If a man bargain and sell lands or goods to one vpon condition, 
1 Where a thing was not fold at the first and where it was sold, but the sale is defeasible vpon condition.  that if the whole price or that which remaineth to bee paid bee not payed or satisfied at such a day, then the thing whereof the price is agreed upon betwixt them shall bee vnbought: now if the money bee not payed at the day, the thing whereof the communication was, in the preferrment of Lawe was not sold at the first: 
l. 1. ff. de leg. Comm.& li. qui ea lege C. cod.  But if it had been said, that if the money had not been paid at the day, then the thing sold should reuerte to the vendour, here there had been a harlot bargain and sale, but resolubilis sub conditione, defeasible vpon the condition not performed, 
l. 1. ff. de leg. commissor.  and in all conditions of bargain and sale this is done that either an imperfitte sale is perfitted, or a harlot sale is defeated. For when communication is had about the buying of a thing, and the price is agreed vpon, and the bargain concluded, now if the vendour do at the time of the bargain and sale add such a condition, that if any other man within a month or fifteen dayes next after ensuing, will give more money for the thing sold, that then the bargain and sale shall bee void: 
L. 2. 1. rees{pre} ff. de in diem adicc.  now the bargain and sale is perfit, 
2 A difference betwixt a {per}fite sale,& a sale to be perfited vpon a condition performed.  but it is defeasible vpon a condition: but if in the same case the price bee agreed vpon, so that no person do within a month or fifteen dayes give more for it, now this sale is to be perfited vpon a condition performed, 
d. l. 2. respon.  and there is a great difference betwixt these two bargains and sales, For in the first case the buyer doth become owner of the thing said retractabiliter. 
l 1.§. said& Marcellus ff. de addicti. in diem.  And in the mean time he shall take, and enjoy the profits of the thing sold, 
d. l. 2 in fi. l. Item quod dictum ff. de in diem addict.  and the peril of the thing sold if it bee destroyed, lost, or made worse doth belong unto him, 
I. ubi autem§. 1. ff. de ti. in diem addict.  but in the other case, namely, when an imperfect bargain and sale is to bee perfited, the bargainee doth not take the profits, neither doth the peril belong to him 
d l. ubi autem in princip. .  Anglonomoph. 
You haue put good diversities and wee haue many cases suitable unto them in our Law, which I will not omit. If a man grant to one the keeping of his park, vpon condition that if the grantee do not well keep his Deere within the park, the grant shall bee held as no grant: and after the grantee killeth some of the Deere, 
3 That a proviso though i● be placed amongst covenants, may defeat a bargain and sale.  the grauntor may bring an action of trespass for the breaking of his park, and for the killing of his Deere, 
2. R. 2. bar 237.  and a proviso in an Indenture of covenants though it bee placed amongst covenants, yet it shall bee of force in some case wholly to defeat and dissolve the bargain and sale; as if a man bargain and sell a mannor with the advowson in fee, habendum to the use of the bargainee and his heires, in such manner as in the Indenture of covenants is agreed, and he covenanteth to suffer a recovery to the use expressed in the Indenture, rendering a rent to the bargainor and his heires with a distress for the same, and a nomine paenae,& further pro vlteriore securitate, it is concluded that the bargainor should levy a fine to the bargainee with a rendering of the rent to the bargainor, proviso that the bargainee shal regrant the advowson for life to the bargainor, and if it be covenanted farther that all estates afterward to be made shall be to the said uses, now if a recovery be suffered, and a fine levied, but varying from the Indenture of covenants, and the bargainee death before the regraunt of the advowson, the proviso in this case is a condition, and for the breach of the condition the bargainor may enter 
14. Eliz. 311. Dyer. ,& as to that which you haue said that where the sale is perfit, but defeasible vpon condition, 
4 That where a bargain and sale is perfit but defeasible vpon condition, the vende● shall take the profits till the condition be performed.  the vendee shal take the profits till the condition be performed, it agreeth to a case in our Lawe, where a feoffment is made to a feme covert of certain land,& the husband after disagreeth to the feoffment, yet the mesne profits which were taken betwixt the time of the livery,& the disagreement, shall not be restored to the feoffor. For if a Praecipe quod reddat, had been brought against the husband& the wife after livery,& the husband had disagreed pending the Writ, the writ shall abate, yet the taking of the profits is justifiable: for the feoffment made to the woman is good till the husband disagree 
Per Br. Feofm. de terres 36. contra opinion. Brian. 1. H. 7. 16. .  Nomom. 
Suppose that no day be limited when the vendee is to pay the residue of the money, 
1 When no day is limited for the payment of a sum what time the Law will require.  or a stranger is to offer more money as in your cases put before Codign. shall the defeasance be voided? or what time will the Lawe require for the payment of the money?  Codign. 


2 In such case the party charged with the payment shall by the civil Law haue lx. dayes.  
3 That by the Common Law when no day is limited, the money is presently due, yet in some case by some authority the discretion of the judge is to limit a time.   In such cases the Law doth limit a time and doth assign to the party charged with the payment, the space of lx. daies 
Gl. mag. in c. Illo vos de pignori.& facit optime. l. quod si nolit.§. qui mancipium ff. de Aedil. edict. .  Anglonom. 
In our law we haue a rule that when a man is bound in xx. li. to pay x. li.& no day of payment is limited, the lesser sum is a duty presently,& ought presently to be tendered 
20. E. 4. 8.& 21. E. 4. 38. le case deal maior de Exetor̄ per touts less Sergeants& ascuns des Iustices. , howbeit in such cases by the opinion of Starkey 
Ibid. per Stark. , the discretion of the Iustices shall limit a time having regard to the distance of the place, and to the space of time wherein such a thing may be performed: for the obligor is not compellable to pay the money within one hour, neither may he differ the payment the space of 7. yeares, but the time must be adiudged by law: so if I prescribe to haue common because of vicinage in such a village, namely every year after the corn be severed& carred away, to put in my beasts into the field,& all the terre tenants of the village haue carried away their corn& hay except one man onely, now the Law shall adjudge whether he had sufficient time to carry away his corn& hay, when his neighbors did carry it away 
Ibi. {per} Stark.& Fairef. ,& so in the case before, the discretion of the Iustices ought to measure the time, and surely his opinion seemeth reasonable unto me, though I dare not affirm it to be Law. For every mans business ought to be ranted by a convenient time, and therefore the learned Philosopher hath well defined time in this sort: 
4 The definition of time according to the opinion of Aristotle.  Tempus est mensura motus secundum prius& posterius: and as the motion doth measure the place: so doth time measure motion: for a daies journey is measured of a day, an houres of an hour, 
Arist. physicor. 4. c. 11.& 12. lib. 1. de anim. c. 3. lib. de generat.& corrupt. 2. c. 10.  and if a man be bound to enfeoff one, and no certain day is limited when the feoffment shall be made, that may be done and performed in a reasonable time 
14. E. 3. debt 138. .  Nomom. 
Are there no other things to defeat a bargain and sale but onely conditions?  Codign. 
Yes▪ for a bargain and sale may be avoided for some defect of some substantial thing required to the perfection of the contract, 
1 That a bargain and sale may be avoided through defect of some substantial thing belonging to the act.  as where the thing that is sold is not markettable or the price is not certainly set down, 
§. pretium. justi. Eo.& C. Eo. l. fi.  or when lawful consent is wanting, as when a bargain and sale is extorted or enforced through fear or threatening, 
Metus causa ff.& C. quod met. causa& l. si voluntate C. de rescin. vend.  or when there is fraud and deceit in the contract, 
ff. de dol. l. eleganter l. si voluntate C. de rescin. vend.  as if the thing sold haue some inward fault: 
2 That fraud and deceit in the contract by the civil law doth defeat the contract.  As if a Horse or some other beast that is to be sold, be troubled with some inward or secret disease, 
C. de act. empt. I. empt{ur} l. emptor.§. animalium quoque ff. eod.  for buying and selling being a contract bonae fidei, whatsoever thing is done in it vltra probatum vendendi modum is auoidable by law, 
d. l. 1. l. Ex empto.§. redhibition̄ ff. de act. emp.§. si quis virgin̄ ib.  but the fault in such case, 
3 A difference where the fault of the thing sold is Latens or Patens.  which is in the thing sold, is either latens or patens: if it be plain and visible, the bargainor is cleared from fault, 
§. nunc qualit{ur} retractet{ur} l. ea quae§. quaed. ff. de contrahen. emp.  but if it bee a secret fault then a distinction must be used: for either it was in the beginning and growing at the time of the sale, so that it may easily be cured, and yet not easily perceived,& then the seller is not any way to be charged: or else the secret fault was some festered and inveterate disease, and in such case the seller is to be charged 
L. mortis C. de per.& come. rei vend. , but if the thing that is sold bee liquid and gustable, and the buyer doth taste of it, or if it be measurable and he doth measure it as corn, or if it be ponderable and he doth wey it as mettall: or if he mark a beast which he hath bought, and the beast bee afterward changed; in all these cases the damage resteth vpon the buyer 
L. 1.& l. qd si neque§. fi. ff. de per.& come. rei vend. l. 2. C. eo. : But if the things aforesaid be not tasted, 
4 That whether the fault be Latens or Patens if the bargainor do warrant the thing sold to be without fault, he is bound by the warranty by the civil Law.  measured, weighed or marked, but be sold at a venture; as if a man sell all his wine or oil in such a house, and doth warrant it to be good and merchantable, or if he warrant the beasts that he selleth to be sound, the seller in such cases is punishable 
l. si vna. ff. de per.& come. rei vend. , but if he had not warranted it, then the law is otherwise 
d. l. 1.§. 1. C. eo.& l. qd saepe§. in his ff. eo. .  Anglonomoph. 
In these cases, which you haue now put, our Lawe( as I take it) differeth very little, or nothing from yours: for whereas you say, 
5 That bargains and sales, matters in writing and obligatory, may be avoyded by al●eaging that they were made or done per menace or by du●esse.  that a bargain or sale enforced by terror may bee avoyded: in our Lawe even matters in writing& obligatory may be for the same cause defeated and frustrated: and if a man seized of an acre of land do give it in tail by dead, and maketh a letter of Attourny to deliver seisin, and all this is done by duresse of imprisonment, and livery of seisin is made, this is a disseisin to the donor, and the dead of gift and livery may by Law be avoided 
41. E. 3. 9. 2. E. 4. 19. per little. Park. Tit. grants Sect. 17. , and if a man menace me to kill me, if I will not grant to him an annuity of xx. s.& for doubt of death I grant it unto him, this grant is voidable, 
11. R. 2. Duresse 13.  But if a man grant an annuity to another by threatening him that he will carry away his goods, whereupon he granteth unto him the annuity, this grant is not voidable by reason of such menacing, because he may haue an action to recover the goods if they be taken away, 
7. E. 4. 21. Park. tit{ur} Grants Sect. 18.  but a threatening of battery is a good cause to avoid a dead 
4. E. 2. Duresse 9. , and so is the threatening of imprisonment a good cause to avoid a bonde, 
8. H. 6 12.  but otherwise it is of a threatening to burn my house, 
39. H. 6. 51.  and a duresse or menacing at one place shall avoid an obligation made at another place, 
38. H. 6. 13. {per} moil. 33 H. 6. 24. 2. H. 5. 10. & as to that which you haue spoken of fraud& deceit in bargains and sales,& the warranting of a thing to be good& sound, which is nought and corrupt, I could put many cases agreeing with your assertions& diversities. 
6 That by the Common law a warrant●e made vpon the concluding of a bargain and sale doth bind otherwise ●t is if the warranty be made after the b●rgaine concluded.  If a man sell unto one certain cloth& warrant it to be of such a length, and it is not of that length, he which buys the cloth may haue an action of deceit against him by virtue of the warranty: but if the warranty be made at some other time after the bargain, he may not haue a writ of deceit, 
Fitzh. nat{ur} br̄ 98. K. & if a man sell to another seeds,& warrant thē to be of a certain country, if they be not so a writ of deceit will lye: otherwise it had been, if he had warranted that they should haue grown, or if he should warrant that the horse which he selleth, should go 50 miles in a day: and a writ of deceit lieth for selling corrupt victual, without warranty, but not for selling rotten sheep though it be with warranty, 
7 That the warranting of a thing which is evident to the sense is no cause to bring a Writ of deceit by the Common law. & the warranting of a thing to be black which is blew, where the colour is evident to sense is no cause of bringing a writ of deceit, but is merely voided: otherwise it is if the buyer be blind, or the thing that is bought be absent 
11. E. 4: 7. 13. H. 4. 1. ,& if a man sell a horse which hath a disease in his body, or if he sell certain quarters of corn which is full of gravel, a writ of deceit will lye without warranty, 
20. H. 6. 36. {per} Paston. 11. H. 6. 22. & if one sell to another certain tuns of wine,& warrant thē to be good& they be corrupt, the vendee may haue an action vpon the case against the vendor, 
Fitz. N. B. 94. & the action will lye without warranty 
7. H. 4. 14.  according to the opinion of some, but M. Fitzh. saith that there ought to be a warranty, or else no action will lye, for in such case his taste may be his judge, 
Fitz. N. B. 94. C.  but where it is with warranty the Writ must say that the def. at the time of the warranty made, knew that the wine which he sold was corrupted 
9. H. 6. 53. .  Nomom. 
You haue spoken enough of this matter: now show me whether by a bargain& sale of the profits of land, the land itself do pass.  Anglono. 
The grant or bargain& sale of the profits of the land is the grant of the land itself, 
45. Ed. 3. grants 90. 4. Eli. 219. Dy. & if a man do lease to one an acre of land for life, 
1 That by the common law the grant or sale of the {per}fi●●●f lands is the grant of the land itself.  reserving to himself the herbage, this reservation is void, for he hath reserved the same thing in substance, 
38. H. 6. 34.  because the profits of land& the land itself are one& the self same thing in substance 
10. H. 7. 9. 6. E. 6. 71. Dy. , but he may lease his Park excepting the wood& underwood,& his mannor reserving the warren, but the soil of the wood and warren shall go to the lessee 
14. H. 8. 1. 33. H. 8. Br. Reseruant. 39. .  Codign. 
By our Law a man may grant and demise the use of a thing and yet not grant the thing itself, 
2 That by the civil Law a man may grant and demise the use of a thing, and yet not grant the thing itself.  Suppose a man grant unto me his mere for a certain time, I may during the time use the mere at my pleasure, but I may not lend her or set her over to some other to use, neither can I haue the fool which cometh of her, for by the grant I may claim vsum onely, but not vsum fructum: and so he to whom the use of a mans ground is granted may take the profits of the ground to his own use, but may not sell them to others 
Gazatup. in vocabular. verbo uti& frui. .  Nomom. 
I would gladly know when a man selleth his land in which there is treasure hid, 

1 When a man selleth land in which treasure is hide and the vendor know h not of it, whether shall the ven●ee haue the treasure?  
2 How this word( Treasure) is taken in the civil law.   whether the vendee shall haue the treasure, because the vendor knew not of it at the time of the sale.  Codign. 
It may bee you take the word Treasure generally, not properly& as it is used strictly in our Law; for if a man do hid any thing in the ground for gain, or through fear, or to keep it more safely, within time of memory this may not properly haue the name of treasure 
l. nunquam D de acquirrer. domin. , for a treasure properly is, when money or things of good value haue lain from time out of mind hidden in the ground, so that no man now hath property in it 
d. l. nunquam. . 
3 That by the Ci●ill law money and other things necessary to the common use of this l●●e are f●rbidden to be hidden& butted in the ground.  It hath been forbidden by many laws that money may not be butted 
l. 4. D. ad leg. jul. pecul. , and these laws haue reason for them, 
Aristot. Nicomach. 5.  for it is against the nature of money that it should bee butted, being invented for the daily and common use of men: And the same may bee affirmed of other things which are hidden: 
L. 5. l. 7. D. de vsufr. ea re queen vs. con.  and these prohibitory laws are forfeited with this penalty, that things so hidden shall be forfeited to the treasury. 
4. Plato his superstitious opinion of things hidden in the earth.  Plato had such a scrupulous, or rather such a superstitious conscience, that he made by his laws treasures to be immobiles,& Dijs inferis sacros, and his precept is strange in this case. Quae minime deposuisti, ne tollito. 
plate. lib. 11. de legi.  Adrianus. Caesar made a Law( as Spartianus reporteth) that if any man had found treasure in his own ground, himself should haue it: if in another mans, he should give the half to the owner of the soil: if in a public place, he should divide it equally with the treasury. This Law was abrogated by other laws following, 
5. How the civil law doth order and dispose of treasure  and revived by justinian, but now and long time ago our Law hath transferred it to the Prince in whose realm it is found, 
L. 3.§ Nerati D. de acquire. poss. Alberic. gentiles Disputati. De cad. 1. ca. 10.  So that I cannot possibly see how the vendee in your case proposed shal by our law haue it.  Anglonomoph. 
Nor by our Law which saieth, Quod thesaurus competit domino regi,& non domino libertatis, si non sit per verba specialia, aut per praescriptionem. 
Fitz. Coro. 281. 436.  And in this case though he sell unto him the profit de terra: 
6 What the Common law doth determine of treasure.  yet he doth not sell unto him the profits in terra which treasures are. 
Plow. come in le informa. pure mines.   Nomom. 
I will content myself with this difference which you haue put, and will now proceed according to the platform of our forementioned order to learn something of seignories and services.   

The fourth Dyalogue of Seignories and services.  NOmomathes. 
Because things are better and more certainly known by the definition of them, therefore I pray you let me first haue of you some definition or description of a tapistry.  Codicgn. 
A tapistry, which we call feodum, may be thus described. 
1 The description of a tapistry by the civil law.  A bountiful granting of land for doing homage or some other special service. 
glow. in vsi. feu. Tit. quib. mod. feod. acquire. in princip. c. unico§ in primis& Tit. in quib. cause. feud. amit.& de feud. dat: mi. valuas. ca. unico.& melius Tit. de feud. dat: in vicem leg: commissor: reprob: cap: vnic:   Anglonomoph. 
A signory with us, 
2. Likewise by the Common law.  is nothing else but a relation of delitie betwixt the tenant and the Lord.  Canonolog. 
In our Canon law it is shortly defined: 
3. By the Canon law.  The granting of land for homage. 
C. ex diligenti. de simon.   Nomomath. 
show me I pray you how homage and other services had their first existence and beginning, but first show me what homage is.  Anglonomoph. 
Homage is thus performed. The tenant that is to do homage, 
1. What homage is, and how it is to be performed by the Common law.  must haue his head discovered, and his Lord sitting, he must kneel before him vpon both his knees, and shall hold forth both his hands between the hands of his Lord, and shall say as followeth. I become your man from this time forward of life and member, and earthly honour, and to you shall be faithful and loyal, and shall bear unto you faith for the tenements, which I claim to hold of you saving the faith which I bear to our Lord the King: which being done the Lord sitting shall kiss him. 
Litt. li. 2. c. 1.   Nomom. 
Hath this Ceremony been ancient?  Codicgn. 

2. That Homage hath been practised in ancient ●ime.  The kneeling and giuing of a kiss at the doing of such service is very ancient: for Tiridates the King of armoniac did kneel down before Nero the Emperor, whom Nero lifted up and gave him a kiss. 
Tranquil. in Neron.  And long before his time, Alexander the great did embrace, and with a kiss greeted such as made the like potestation of obedience and loyalty unto him, 
Plutarch. in Alexand.  and long before that as it seemeth it was used in judaea, for vpon these words of the Psalm 
Psalm. 2. r. 12. ( kiss the son) our English gloss addeth by way of interpretation( in sign of homage) and Tremellius and Iunius( in sign of fealty:) sithence these times this respective humiliation hath spread itself into other countries and territories: for the Duke of Gelderland did conceive an oath in these words to Charles King of France: Ego deuenio vassallus ligeus Caroli regis Francorum, pro ratione quinquaginta millium scutorum auri ante festum divi Rhemigij mihi soluendorum, &c. 
Bodin. lib. 1. de repub. c. 9.   Nomom. 
I desire greatly to know the original and first blossoming of other seignories.  Anglonomoph. 

1. What a Manor is, and whereof it consisteth.  The most common tapistry of account which wee haue in our Law, is a tapistry by reason of a Manor, which may be thus defined. A manor is an inheritance of ancient continuance consisting of demesnes& services, perquisites, casualties, things appendent and regardant, customs, liberties, &c.  Nomoma. 
What? do so many things concur to make a manor: will not demesnes and services serve?  Anglono. 
Yes, demesnes& services will suffice as material causes to make a Manor, 
26. H. 8. 4.  but it is a naked manor which hath nothing else.  Nomom. 
I would gladly hear somewhat of the commencement and first creation of a Mannor.  Anglonomo. 
M. Parkins doth very well and originally describe it in this maner. 
2. The original of a Manor.  The original of a Manor was when the K. did give a thousand acres of land, or a greater or less parcel to one of his subiects and his heires, to hold of him and his heires, and the donee edifieth a house vpon his land, as his mansion place& of 20. acres. or less, or greater parcel, he doth household-stuff a stranger before the Statute of Quia empto. terrar. to hold of him and of his heires as of the same house by the ploughing of 10. acres of arable land parcel of that which remaineth in his own possession,& infeoffeth another of another parcel to hold of him by carrying ordure to his arable land, and infeoffeth a third man of a third parcel to go with him in the war against the Scots, and so by continuance of time( saith he) a Manor is made. 
Park. Reseruat. fol. 128. Sect. 670.  Yet by his favour somewhat else goeth to the making of a Manor: namely, suite of Court at his house or mansion place, 
33. H. 8 Br. Comprise. 31. Mannor 5.  and this suite must bee the suite of more freeholders then one( so that some doubt may be made of M. kitchens assersion, when he saith, that in some Manors there be no tenants but copiholders,& yet in such Manors be Court barons 
Kitch. Court Leet& Baron Tit. Manerium. fol. 4. ) for if all the freeholds do escheat unto the lord beside one, or if he purchase al but one the manor is extinct, for it cannot be a●manor unless there be a court baron belonging to it: and a Court baron must be held before suitors, and not before one suitor, therfore one freehold cannot make a manor. 
Br. Ca. Sect. 210.& 23. H. 8. Br. Court baron 22. in fi.& 33. H. 8. svit. 17.   Nomom. 
You haue well declared unto me the beginnings of seignories and manors: but haue there been no laws made for the strengthening and preserving of them: for me thinks they be good means to increase and support, the wealth, pvissance, and flourishing estate of the realm.  Anglono. 
Yes, our law in this case hath not either slumbered or winked. For in the ancient statute of Magna Charta it is provided that Nullus liber homo debt de caetero amplius de terra sua, 
Statutes made for the pre●eruation of seignories and manors.  vel vedat de caetero, quam vt de residuo terrae suae posset sufficientur fieri domino feodi seruitium ei debitum quod pertinet ad feodum illud, 
Magn̄ charta c 13.  which statute( as M. Stanford avoucheth,) is but a confirmation of the common law: and he( a most diligent and exquisite searcher of the reasons of law, so that I may boldly speak of him, that which I shal not say impudently& untruly, Foelix, qui potuit rerum cognoscere causas) sifteth out the reason of this Law. For( saith he) if one that held by Knights service might haue been suffered to haue aliened the greatest part of his land, he would haue aliened the same peradventure to hold of him but in Socage, or by some small rent, and then having so little a liuelod left to himself, how had he been able to haue done the service of a Knight or man of war, or what should his Lord haue had in ward to haue found one to haue performed the service? surely little or nothing. 
Stamf. praerog. c. 7. Tit. Alienati: sans licence.  But it seemeth doubtful notwithstanding the Statute of Magna Chart. whether the tenant might alien his whole tenancy or not, whereupon the Statute of Quia emptores terrarum was made, which permitted every freeman to sell his lands or tenements, or any part therof at his pleasure to hold of the chief Lord by the same service, that the feoffer held, provided always that by any such sale, there come no lands to mortmain. This Statute( as M. Stamford noteth) remedieth the mischief, which was before found in the wardship, but not the other mischief touching the defence of the realm, for when one mans living is dismembered, never a one of the feoffees nor the feoffor is able to do the service of a Warrior for want of liuelode, there being so little quantity of land in every of their hands, yea much more unable sithence this statute is the feoffer then before, for before when he gave it to hold of himself, he reserved somewhat in lieu of the land which went from him, whereas now he can reserve nothing of common right. 
Stamf. ibid.  And the land which he retaineth in his own hands may perhaps be of small value.  Nomom. 
What is the most general and most common service of all?  Anglonomoph. 
fealty, 
1. fealty is the most general service in the Common law. 2. and in the civil law.  for that is incident to every tenor, unless it be tenor in frankalmoign. 
Littlet. lib. 2 c. 3. Sect. 13. &c. 5. Sect. 22.   Codicgn. 
So it is with us: for fealty which of us is called fidelitas, is due to every Lord to whom any service is to be performed: and every tenant ought to do such service, 
3. That by the civil law the Common law and the Canon law, a religious man ought to do fealty.  yea though he be a religious man and professed under rule. 
ca. unico Tit: de natura feudi. Et Tit. qualiter vassal. jur. deb fideli: dom̄i: Et in ca. unico. tit quib. mod: feud: amittatur. Et in quib. causis feudum amitt.& Tit. quae fuit pri. causa benef. amit.   Canonolog. 
But such a religious man may not say, Ego deuenio homo vester, nor humiliate himself to execute the rite of homage. 
C. veniens& C. ex diligenti. de Simon. grauem de excess: praelat. cap. fin: de re Iud:   Anglonomo. 
By our law he may do homage: but may not say to his Lord Ego deuenio homo vester, because he hath professed himself to be onely God his man, but he may say, I do unto you homage, and to you shalbe faithful and loyal. 
Littlet. lib. 2. c. 1. Sect. 2.   Nomoma. 
show me I pray you some special kinds of these services, that I may know them more fully, and more distinctly.  Codicgn. 

1. The diverse kindes of services in the civil Law, and their definitions.  services are diuersified according to the qualities of the persons to whom they are to be done: if it bee to be done to an Emperour, it is to be termed an imperial service: if to a King, a regal service, 
Cap. 1. de feud: march:& ducat:& in ca. 1. quis dicat. dux, comes, marchio.  if to Religious persons ecclesiastical: if to Lay-men, secular, 
Tit. de his qui feud. dar. pos.& Tit. Episcop. vel Abbar.  but when it is to bee done to a lesser estate then to an Emperour or King, as to a Duke, marquis, or earl, then it is called feudum honoratum; sometime land is given by inferior persons& meaner men without expressing any service, and then the Law intendeth that fealty only is to be done, and this is called Francum or Liberum, 
Ca. 1. de no. form: fidel:  sometime it is given with reservation of special service and that is feudum non nobile, 
Ca. fi de capilan: qui ever: vendid.  sometime it is given in perpetuum& sometime but for term of life, and then it is called perpetuum vel temporale 
De feud: march: in prin. de alien. feud. in fine,& de feud: guard:& castald. . But though by the oath of fealty the vassalle be bound to serve his Lord in war, yet this is limited to such case where the war is not notoriously unjust or unlawful: for if it be otherwise, though he do him no service in war, yet he shall not forfeit his tenement, 
In cap: dno guerram in prin. in Tit. hic fini. lex deinde &c.  neither is he bound to do his service to his Lord if his Lord be excommunicate, or banished, until he haue obtained absolution or a recalling from banishment: 
D. cap. dno guerram in fin.  but in a just war, the vassalle is bound to help his lord against every other person, who is not the Lord of the vassal, yea even against his father, brother, or son.  Anglonomoph. 
services in our Law are of diuers sorts: 
2. The diverse kinds of services in the common law and their definitions  some being more noble and some less noble: of those which are more noble, some belong to the king and some both to the king& to subiects: of those that belong to the king, some be domestical only, as Petite Sergeancy: some bellicall onely as Knights service: in Capite some both domestical& bellicall, as grand sergeancy,& some of the more noble services belong unto subiects as well as to the king, as knights service and homage: those which be less noble may be divided into two branches: for either they are ingenuous, or servile: the ingenuous are of two sorts: either performable by particular men, or a certain people, as fealty, rent service,& the like which make socage tenor: or else performable by a certain people only, as burgage: the servile or base service, is usage. Of all these services save such only as haue been before described I will speak somewhat, severally, briefly,& in order. Petite Sergeancy, is where a man holdeth his land of the king, paying yearly unto him a bow, or a spear, or a dagger, or a lance, or a spur of gold &c. 
Littlet. lib. 2. ca. 9. sect. 1.  Knights service in Capite, is where a man holdeth his lands or tenements of the king as of his crown immediately ab antiquo, by doing some warlike service. Grand sergeancy, is where a man holdeth his lands or tenements of the king as of his Crown immediately, by doing some special service to the king in person; as by carrying his banner or lance, or by being his marshall, or sure, or carver, or butler, &c. 
Litt. li. 2. ca. 8. sect. 1. 23. H. 3. Gard. 148.  of homage and fealty hath been spoken before. Rent service, is where the tenant holdeth his land of his Lord by a certain rent, for which, if it be behind at the day, wherein it ought to be paid, the Lord may distrain for it of common right. Burgage, is where the tenants of an ancient borough, do hold lands within the Borough of the King or some other person, as of his borough by a certain rent. 
Lit. li. 2. c. 10. sect. 1. 2.  usage, is where a man holdeth of his Lord, either by doing unto him some particular base service, and such a one is called a tenant by usage, or by doing generally whatsoever base service his Lord will command and impose vpon him, and such a tenant is termed in our Law a villain. 
Lit. li. 2. c. 11. sect. 1.& 2.  This miserable estate of usage, had his beginning soon after the deluge, and now by the consent of all nations it is ratified, 
3. The original of usage& the nature thereof.  for the West Indians though they haue no knowledge of divine or human laws, yet bondmen they haue, and the Mohometists make Christians their bondslaves, the Portugallians make villains of the Mahometistes which they sell by companies as flocks of sheep in the market. 
Bodin. lib. 1. de repub. c 5.  The Romains had power by their law to sell or kill their villains: 
Tacit. li. 14.  but for mitigation of cruelty the Law Petronia was made, whereby it was forbidden that none should put his villain to death without cause, which law was executed by Nero, 
Senec. lib. 3. de benefic. & after by Adrianus: 
Sparcian in Adrian.  but our law a more concionable favourer of life hath restrained the hands of the Lord from the bloodshed of his villain, and from the maiming of him, 
Litt' lib. 2. c. 11. Sect' 32.  having regard to the Law of God which recompenseth these bondmen with freedom whom the Master hath by some blows maimed, 
Exo. 21. ver. 26.& 27.  which lawe Constant. the Emperor did put in practise, 
l. 1. de Emend, seruor. C.  but al the lands& goods purchased& possessed by the villain the law frankly giveth to the Lord, if he will seize& claim thē, 
Litt' lib. 2. c. 11. sect' 8.10.  wrentched I confess is the estate of such men, but yet patiently to be tolerated, because quam potestate aliis defer voluim, far debemus,& they whose ancestors, or themselves haue ackowledged themselves to be villains, must now dutifully bear the yoke, though cvi plus licet quam par est, plus vult quam licet, 
Gellius lib. 17. c. ●4.  and let the Lords of such villains harken to that which is spoken of an heathen man divinely: Boni moderatoris est restringere potestatem, 
Ammian. lib. 29.  but to leave these particulars& to proceed more generally, as one man may hold lands of another by every of these abovesaid services as of his person, 
4 The tenor whereby a man holdeth of a honor or Manor is described, and by examples illustrated.  so likewise he may hold of him as of his Honor or Manor for if a man hold of the king as of any honor which is come to his highnes by discent from any of his ancestors, he shall not hold in Capite, for by the words in the first Chapter of Prerogatiua regis, it is evident that if it shal be said a tenor in Capite, it must bee holden of the crown of a long time, the words be ab antiquo de Corona,& that cannot bee when it is but newly comen to the crown, and the statute of Magna Charta c. 31. did( as Master Stamf. saieth) help this matter by express words, if such an honour came to the crown by way of escheat, but not if it came by way of discent, 
5 certain honors which be not of the auncientnes of the crown.  or any other way: and that statute doth set forth certain honours by name which be not of the ancientnes of the crown, that is to say, the honor of Wallingford, Notingham, Bullingbrook and Lancaster, therefore he that holdeth of the King, as of these Honors, holdeth not of the king in chief, 
Stamfords Praerog. c. 7.  but other honors there bee which of so long time haue been annexed to the crown, that to hold of thē is to hold in chief, for whereas one held of the king as of a certain honor, 
6 Some honors which are annexed to the crown.  to yield a certain rent to the keeping of the castle of dover, this hath been taken to bee a tenor in chief, and so it hath been thought if one hold of his highnes as of the Honor of the Abbe of Marle, 
Fitz. nat. bre. 259.  and Anno undecimo of king Henry the seventh, the honour of Ralegh was annexed to the crown, therefore if any man hold as of that honor it is a tenor in capite, 
34. H. 8. Br. case. 230.  and therefore there is a good rule in the Register of Writs, that a man shall not make a fine for alienation of lands held of the King as of his honour, but for land held in Capite only: for there be certain honors which be held in Capite, and there is a certain writ, that the Escheator shal not grieve any man for alienation of land held as of an honour, for that is as of an honor,& not as of the kings person,& no fine shal be paid for the alienation of such land. 
Regist. 184. Br. Alienac' 33  And whereas it was found by Office that land was held of the queen as of her principality of Wales, by the service of going with the Prince in war at the charge of the Prince, per curiam, 
18. El. Dy. {per} Curiam.  this is no tenor in capite. And Master Finchden putteth this diversity, that where an Honour is seized into the Kings hands, if a Manor held of the Honor do escheat to the king by a common Escheat, if the King alien the Manor to hold of him, the tenant shall hold by the same services as he held by force of the Honour( for the Honour seemeth to bee 'vice domini in this case and as a mean Lord) but if it come to the King by forfeiture of war or by some other treason, or by some other cause which toucheth the Kings person, and the king seizeth, and enfeoffeth another, the feoffee shall hold of the King as of his crown: 
47. E. 3. 21. {per} Finchden.  and though the statute of Magna Charta ca. 31. before recited do say, Si quis tenuerit de nobis de aliqua escaeta vt de honore Wallingford, Bolen &c. non faciet aliud seruitium quam fecit praeante: yet this is to be intended of a common escheat and not otherwise. 
29. H. 8. Br. Ca. 114.  So a man may hold of the King as of his manor, and yet not hold in Capite, for it was found by office that one held land of the King, as of his Manor of Plimpton, and other lands as of his manor of Darington, which came to the king by the attainder of treason of the marquis of Excetor, this hath been thought to be no tenor in capite, for tenors in chief did begin in ancient time vpon the grants of Kings to defend them against rebelles and enemies: and at this day the queen may create a tenor in Capite, if shee give land to hold of her person: otherwise it is if it be given to hold of an Honor, manor, &c. for a tenor in chief must bee immediately of the King, and is created by the King onely: for a tenor created by a subject cannot be a tenor in chief, nor haue any prerogative annexed unto it, and if the tenants of an Honour should hold of the King in Capite, the Honour when it came to the King should bee destroyed, which may not be, and there is no reason that the tenant in whom there is no default should bee prejudiced in his tenancy by the offence of the lord, 
30. H. 8 44. Dyer.  and if the Q. purchase a manor of which I.S. holdeth by Knights service, the tenant shall hold as he held before, and he needeth not to tender his livery, nor primer seisin: for he doth not hold in Capite, but as of a manor, and if his heir be in ward by reason thereof, he may haue an Ouster le main at his full age, and if the queen grant the manor afterward to W.N. in fee, excepting the services of I. S. now I. S. holdeth of the queen as of her highnesse person: yet he shall not hold in Capite but by such services as he held by before of the Mannor: for the queens act may not prejudice her tenant, 
29. H. 8. Br. Ca. 113.  but where a man holdeth of the Q. by reason of an other thing, as namely, by reason of a Mannour, this is no tenor in Capite, 
3. Eliz. come 241. Wildgous case.  but if the King be seized of a Mannour, and giveth to a stranger an acre of the Mannour, to haue and to hold to him and to his heires of his body engendered without expressing any service, the donee shal hold of the King by knights service in Capite, 
Ibid' 240. per Car.  and tenors likewise may be to hold of one as of his person or of his Manor by diuers other services, as if a man had made a feoffment of land before the statute, or a gift in tail sithence the statute, to hold of him by the making of a bridge over certain land, or by making a Beacon in the land given, this is a good tenor: for a man may hold of an other by doing service for a common good, as well as for the private profit of the Lord, as to repair a bridge, or a high way, or by keeping such a Castle, for the Lord himself in this hath profit with others. 
11. H. 7. 12. 12. H. 7. 18. {per} Finch 24. H. 8. Br. case. 51.   Nomom. 
You haue taken some pains Anglonomoph. in describing the particular kindes of tenors: 
1 Whether one within age be compellable by law to do all manner of service either by himself or some other.  now I would hear somewhat of Codicgn. whether one within age be excused from personal service, because his age is not fit to serve, so that the service age is suspended until the maturity of his age: or whether he shalbe compelled to do his service by a substitute.  Codicgn. 
To dissolve that question, a difference is to bee taken, for either the Father of the heir which is within age, 
2 A diversity in the civil law, whether the father of such an infant dyed in a just war, or a home in his ●ed.  dyed in the warlike service undertaken for the defence of his Lord in a just war, I mean that which is waged for the safety of the Common weal; or else he dyed in his house by human infirmity without any bearing of arms: in the first case he is not bound to do any service either in his own person, or by any other person interposed during his minority, because his father who died in the field is supposed in lawe still to serve by the glory of his valour, 
Instit. de Excus. tutor.§. said si in bello ff. ad leg. Aqu. l. qua actione,§. si quis in colluctatione.  which the best and most learned of all Poets did well imagine: who when he had placed Caesar in the midst of extreme troubles, to comfort and encourage him, representeth unto him the ghost of Scaeua, one that dyed a good while before, but yet after many assaults, and many wounds, stood out as a Conqueror, 
Lucan. li. 10.  which conceit of Lucan, Tasso a modern Italian Writer, a man of an excellent poetical wit in the description of Guidoes funeral doth passionately, though Popishly glance at, 
S. Torqua●. Tasso. Canto. 4. Gierusal. liberat.  but if the Father dyed not in war, nor in the expedition, but by natural death in his own house, then if the heir at the death of his Father bee in his pupillage, he must perform that service by a substitute.  Anglonomoph. 

3 That by the common law the infan● shalbe in ward if his father died seized of land held by Kn ghts service without any such diue●sitie.  But by our Law he shall be in ward to the Lord during his minority, if he hold his Lands by Knights service, and the Lord shall haue the profits of his land that he may maintain a sufficient man to do him service in the war, whereas the heir by reason of his tender age cannot personally perform the service, nor by the want of discretion provide a convenient person to accomplish it, 
Litt. li 2. c. c. 4. sect. 3.  but if he be made a Knight within age, then because the Lawe intendeth that he is fit to do his service, because knighthoode is bestowed in regard of precedent merit, or of some eminent prowess and towardness, as may appear by that saying of Scipio in the senate: ab annis septemdecim ad se nectute semper vos aetatem meam honoribus vestris ante istis, ego vestros honores rebus gerendis precissi: 
livius li. 38.  the law is otherwise: But 2. Edw. 6. in the case of Sir Anthony brown of Surrey vicont Mountegue, a difference was taken, 
4. A diversity in the common law where the heir of the tenant by knights service is w●th in age, and a knight at the time of his fathers death& where not.  where the tenant by Knights service death seized his heir being within age, and a Knight at the time of his death; and when after his death, he is made Knight during his minority: for in the former case it was held that he should be in ward notwithstanding his knighthoode, 
2. E. 6. Br. Gard. 42.& 72.  For otherwise the ancestor may procure his son within age to be made Knight by collusion, to the intent to defraud the Lord of his ward, but this seemeth to bee but a weak reason, because knighthood is not by preferrment of the law granted vpon so slight a cause: but it seemeth to master brook, where the heir is in ward, and is made knight being in ward, this shall free him from wardship, for the statute of Magna Charta ca. 3. ( Postquam heres fuerit in custodia, cum ad aetatem peruenerit scil. 21. annorum habeat haereditatem suam sine releuio& sine fine: ita tamen qd. si ipse dum infra aetatem fuerit fiat miles, nihilominus terra sua remaneat in custodia dominorum usque ad terminum supradictum) this( saieth 
Br. ibid.  Master brook) very probably( guiding his opinion by the premises) is onely to bee intended where the heir is made Knight within age, being in ward after the death of his ancestor, and not where he is made Knight in the life of the ancestor, but admit this to be meant of such an heir onely, yet by no consequence can a man infer hereof, that if an heir within age bee made Knight in his fathers life time, he shalbe in ward after the death of his father, nay there is good authority for the contrary. 
6. Elizab. Comm̄ 268.   Nomomat. 
Let me know, I pray you, what penalties lye vpon the Tenant if he do not his service.  Codicgn. 

1. What penalties lie vpon the tenant if he do not his service.  By our Law the vassal is deprived of his tenancy, of whom fealty is demanded, and he refuseth to perform it: 
C. unico, quae fuit prima causa.§. said non est alia.  so that the Lord do demand fealty at due times and allowed by Law, because if he should demand it every year, the vassal should not loose his tenancy, 
§.& si vastallus si de feud. de funct.§. licet vastallus &c. domino guerram in Tit. hic finite. lex &c.  also the vassal looseth his tenancy, if being at full age, 
2 Many causes of the tenan●s forfeiture in the civil Law.  he be not in expedition with his Lord, or if he do not deputy some able person for the discharge of the duty, or if he do not pay to his Lord stipendia militiae pro quantitate feodi, when he is lawfully demanded, 
De place iuram. firm.§. sin.  and that is said to be a due quantity of a Knights fee, when the vassal which goeth not in war, nor sendeth a sufficient man, doth yield the half part of the yearly value of his tenancy to the Lord. 
C. Imperialem§. firmiter de prohi. feud. aliem. {per} Freder.   Anglonomo. 
There be many conclusions in our Lawe answerable to that which you haue said, 
3. Some causes of forfeiture at the common Law.  for it hath been affirmed, that if a man hold his land of his Lord by homage and fealty, and he hath done homage and fealty to his Lord, and the lord hath issue a son and dieth, and the tapistry descendeth to the son, in this case the tenant which hath done homage to the father, shall not do homage to the son, because when a tenant hath once done homage to his Lord, he is excused for term of life to do homage to any other heir of the Lord, 
Litt{ur} lib. 2. c. 7. sect' 13.  But if a man bee seized of a Mannour, and an other man holdeth land of him as of the foresaid Mannour by homage, and hath done his homage unto him, and a stranger bringeth a praecipe quod reddat against the owner of the Mannour, and recovereth the Mannour against him, and sueth execution, in this case the tenant shall again do homage to him that recovered the Mannour, though he haue done homage before, because the estate of him who received the first homage, is def●ated by the recovery, and it lieth not in the mouth of the tenant to falsify or defeat the recovery which was against his Lord. 
Litt{ur} ibid sect' 17.  And if a tenant which ought by his tenor to do homage to his Lord, come to his Lord, and say unto him, that he is ready to do him homage for the tenements which he holdeth of him, and the Lord doth then refuse to receive it, after such refusal the Lord cannot distreigne the tenant for the homage, before the Lord require him to do homage unto him, and he refuseth, 
Litt{ur} lib. 2. c. 7 sect' 19. 20.  and he that holdeth by Knights service of the King, need not go to war with him, if he will find a sufficient person conveniently armed, and fit to go with the King, and this seemeth good reason: For it may bee, that he that holdeth by such services, doth languish in sickness, so that he cannot go, nor ride: And a Feme sole which holdeth by such services, may not in such case go in proper person, and it hath been said, that Escuage shall not bee granted unless the King go to war himself in proper person, and after such a voyage royal it hath been likewise affirmed, that by authority of Parliament Escuage shall bee assesed and put in certain how much every one that holdeth by an entire Fee of Knights service, which was not with the King by himself or by an other for him, shall pay to his Lord of whom he holdeth by Escuage, as if it bee ordeigned by authority of Parliament, that every one which holdeth by an entire Fee of Knights service, that was not with the King nor any other, &c. for him shall pay to his Lord forty shillings, then every one that holdeth of his Lord by the moiety of a Knights Fee, shall pay to his Lord forty shillings, and he that holdeth by a fourth part, ten shillings, and so pro rata 
Litt{ur} lib. 2. c. 3. sect' 5 6. 8. 7. E. 3. 29. .  Nomom. 
resolve me, I pray you, whether when the tenant hath committed treason or felony, and thereof is convicted and attainted, he shall( as to his tenancy) incur any prejudice.  Condicgn. 
In such case either the offence is committed against the person of his Lord, 
1 Whether, when the tenant hath committed felony or treason, and is attainted, he shal suffer any prejudice in his tenancy. 2 A diversity in the civil law where the offence is committed against the person of the Lo●d, and where against the person of a stranger.  and so he doth prejudice all those that are to succeed him in the land, by order and course of Law depriving them of the advantage of inheritance, 
Cap. unico§. denique in fin. in illis verbis fi tamen fuerit paternum Tit. queen fuit prima causa ben. amitt.  or he hath offended against some other person, and not against the person of the Lord, then the children only, and such as w●re to take benefit by the person of the father, as issuing from his body are repulsed from the inheritance, 
§. Si vassallus culpam: si de feud. defunct'.  and then it goeth to them of the kindred which are nearer in degree. 
Gloss. supper verbo reuocabuntur in d. si vassallus culpam.   Anglonomoph. 
By our Law, where the tenant is outlawed of felony, it is in the Lords election to haue a Writ of escheat, supposing that his tenant was outlawed of felony, or that he dyed without heir, for by the attainder the blood is corrupted: 
48. Ed. 3. 2.  But it seemeth by Nicholses Case, 
3 That by the common law by attainder of felony or treason the blood is corrupted& in the o●e case the land shall e●chete to the King: and in the other to the immediate Lord.  that the party attainted ought to bee dead before the land can escheat, for according to the opinion of Dyer and Barham, in the Kings Case after the attainder, and till Office be found, the fee simplo shall bee in facto in the person attainted so long as he shal live, for as he hath a capacity to take land of a new purchase, so he hath power to hold his ancient possessions, and he shall be tenant to every praecipe, and if he died before Office found, and the land be held of the King, the land shall go to the King in nature of a common escheat, 
18. Eliz. come 477. Nichols case.  but this is to be intended in case of felony, for in case of treason the King shall bee presently after the attainder in actual possession without office found by the statute of 33. H. 8. cap. 20. and if a man be executed for felony or die after iudgement before he be put in execution, yet the Writ shall say pro quo suspensus fuit, and if he bee put to death by some other punishment then hanging, though the writ say pro quo suspensus fuit, that is not material, 
Fitz. nat. bte. 144. H.  and if the father purchase land, and his eldest son is attainted of felony and death, having issue a son, and the father death, the next in degree of discent and worthiness of blood unto the son attainted, shall not haue the land, but it shall escheat to the immediate Lord of whom the Land is held, for the blood is corrupted: otherwise it had been if he had died in the life of his father having no issue. 
32. H. 8. 48. Dyer.   Nomom. 
Though I must needs confess that it is very good reason that the sons of the, which are disloyal subiects and traitors to their Prince should bee barred from the inheritance of their ancestors, that their fathers infamy should always accompany them, and that they should live in perpetual memory, indignity, and disgrace, that their life should be a punishment unto them, and their fathers faults a continual corrisiue( for that is done, because their fathers vices are feared in them,& it may be well thought that being bred, and brought up of naughty parents, they will be prove to do the like, and punishment in that case is used in the nature of a medicine and not in form of a penalty: and as it hath the effect of a punishment every one is punished for his own fault onely: but as it hath the effect of a medicine, so one man is punished for an others fault, that by suffering shane he may be deterred from crime) yet here it may be said, what place is there left for innocency if the most guiltless, may be punished for the misdeameanor of the most guilty; for as it is not the fault of the corn that it groweth in a bad soil, so it is not the fault of the sons that they are begotten of lewd fathers, therefore it may seem meet and expedient that there should be ibi paena, ubi culpa: and that offences should rest vpon the authors, and that the fall should go no further then the fault, and there is a Law in Deutronom. Non interficiantur patres pro filijs, nec filii pro patribus, said quis queen pro peccato suo interficiatur, 
Deut. c. 24.  and in an other place, unusquisque in iniquitate sua morietur,& quicunque comederit vuam acerbam illius dentes obstupescent, 
Ierem. 31.  and again anima quae peccavit ipsa morietur, filius non portauit iniquitatem patris. 
Ezechi. 18.   Codicgn. 
But Saule did not observe that rule in Deutronom. when he did put to the sword the citizens of Nobe, where he did slay men, women, children, ox, ass, and sheep ore gladij. 
1. Reg. 22.   Canonol. 
But david did keep it, 
4 The aforesaid determinations& conclusions of civil and common law, touching the forfeiture of the offendor are examined by the Law of God.  who would not haue had reuenge taken vpon Ishboseth the son of Saul, 
2. Reg. 4.  and caused them to be slain, who wrought his death.  Codicgn. 
Yet God did otherwise, who in the deluge did destroy the parentes with their children, who spared neither sex nor age in Sodom, who destroyed together all the whole nation of the Amalekites, who would needs haue Achan destroyed with the children, who did roote out al the inhabitants of jerusalem.  Cononol. 
We must otherwise conceive of God his judgements, then of mens proceedings: he hath said viae meae non sunt viae vestrae, all perfection, goodness, and iustice beginneth at him: who doth not any thing because it is just, but it is therefore just because he doth it, or would haue it done; and if Achan had been arraigned before an Ordinary tribunal, he only had perished and not his children, but God his iudgement is extraordinary, and his will is therefore a Lawe because he is god, he is not bound to render account to any: neither is he guided by any Lawe but by the Lawe of his own will: and though one man know not what an other doth purpose and imagine, yet God knoweth the hart and searcheth the reins and might see somewhat condemnable in Achans children, which man could not discover. Yet in some cases he doth observe an ordinary course of punishment, for 
Numb. 26.  Corah perished onely but not his sons, but they were kept safe for the Lords service, and of their posterity came Samuel.  Codicg. 
That which I spake before ( Canono.) out of the scripture was but by way of objection, for our law punisheth not the Sons with death, but only with loss of inheritance in case of treason. 
ff.& C. ad l. jul. may.   Anglonomoph. 
The same Lawe do we observe both in felony and treason together with the forfeiture of the goods.  Codicgn. 
The loss of inheritance in our Lawe doth comprehend the forfeiture of the goods.  Nomom. 
Ye haue dwelled a long time in this discourse of tenors and services: now therefore I would haue ye to speak somewhat of lointenancie and tenancy in common.   

The fifth Dialogue of Jointenancie, and tenancy in common.  Nomom. 
Let me ask you this question Codign. when two be iointenants, or tenants in common as we term them, whether by rigour of lawe the profits ought to go to them all in common, or no.  Codicgn. 
By common right they ought to haue equal profit, whether it be of money, 
1 That Io●●tenants, and tenants in common ought to haue equal profit.  merchandise, or other matter of negotiation: for if one should haue more profit thē an other,& the gain should not be alike, the society( or as it pleaseth you to term it) Iointenancy, or tenancy in common should be Leonina, that is rather the devouring of lions, 
ff. Pro socio l. fi non ●nerint§. ulti.  then the dividing of men, or according to the common proverb, a man should divide honey with a bear, yet in this equal division, which the law requireth, recompense must be had of things, persons, and the industry of the parties. 
l. Omnes,& l. fi socij,& l. l. si. non fucrint ff. cod.   Anglonomoph. 
By our law if two bring a writ of ward of the body of the heir being within age, and the one of them is summoned and severed, and the other recovereth, he which was severed may haue a writ of account against the other for the profits, 
45. E. 3. 10.  and a writ of account lieth, 
2 That by the common lawe a writ of account will lye, if one jointenant take all the profits.  if one jointenant take all the profits, 
39. E. 3. 35.  and for cutting of wood which is held pro indiuiso& the selling of it, a writ of account will lye for the one jointenant against the other, 
47. E. 3. 22.  and the plaintiff need not show in certain in his writ of account, by whose hands the resceit of the money given for the profits was, 
39. E. 3. 35.  and if one of the iointenants do cut wood and carry it away, the other may take it, and remove it to his own house; 
2. E. 4. 24. {per} Danby.  but if one of the iointenants take money for all the profits, the writ of account shal not bee brought against him as receiuor generally, 
14. E. 3. account. 70. 19. E. 2. brief 339.  but as receiuor to the common profit of them both, 
30. E. 1. account. 127.  and if two executors be,& the one assignneth auditors, he that assigneth auditors shal not haue a writ of debt sole for the arrearages of account without his companion: 
9. H. 6. 11.  also there is an other case in our books, that E. and I. did deliver an hundred pounds to R. and T.& R. and T. did put a hundred pounds of their own together with this money to merchandise with the whole stock for the common profit of them all, according to the rate of every one of thē, in such case E. sole may not haue a writ of account against R. and T. 
10. E. 3. 489. 10. E. 4. 5.  so if there be two iointenants of a Manor, and the one of them undertaketh to be bailie for the other for his moiety, a writ of account shal be maintenabl against him, 
21. E. 3. account. 66.  if he haue any especialty to show proving the assumpsit, otherwise not, 
17. E. 2. account. 122.  yet in an account brought against one as the bailie of his Manor which the plaintiff had in ferme, the defendant said that himself was iointe farmor with the plaintiff of the lease of A.& this plea was allowed, though the plaintiff shewed forth a dead of demise made to him onely, 
8. E. 2. account. 115.  and if two merchants occupy their goods and merchandise in common to their common profit, the one of them may haue a writ of account against his companion, 
Fitzh. Nat. Bre. 117. D. 10. H. 7. 16.  or the writ may suppose that the defendant was receiuor of the plaintiffs money,& the defendants for al manner of contracts to their common profit, 
30. E. 1. account. 127. 39. E 3. 35. 16 H. 7. 16. {per} Keb  but one executor shal not haue a writ of account against his coexecutor for the goods of the dead. 
39. E. 3. 35. 6. H. 4. 3. 13. E. 3. execute. 91.   Nomomath. 
Whether is iointenancie, though it be aiointenancie of the inheritance, dissolved and determined by the death of one of the iointenants.  Codicgn. 
Iointenancie is dissolved by natural death, 
1. That iointenancie is dissolved by death, unless there be some clause in the creation of the estate to the contrary.  unless there be some clause in the demise of the land and in the creation of the estate to the contrary. 
ff. pro socio. l. actione§. morte. in fin: justi. eo.§. soluitur.   Anglonomoph. 
Ind ede there bee such clauses sometimes used in demises, for wee haue such a case that a lease was made to two habendum iis pro termino vitae successive uni eorumpost alterum, sicut nominantur in Indentura,& non coniunctim: the question was in this case, whether they were iointenantes or no,& it was ruled without argument that they were not iointenants, but that there is a remainder to him who is put in the second place in the Indenture: 
20. Eliz. 361. Dy.  And so where a lease was made to three, by the premises habendum to the one for life, the remainder to the second, the remainder to the third, the opinion of the court was that they should take successively& not jointly. 
5. Mari. 160. Dy.   Codicgn. 
And by a civil death iointenancie may be determined: 
5. Mari. 160. Dy.  Likewise by the will, 
ff. pro socio l. actione.§ publicatio.& justi: eod.§. publicatio.  and by the alienation of one of the Iointenants. 
L. verum in fin:& l. societatem§. 1. ff. eod. l. tamdiu. C. eod.   Anglonomo. 
By our lawe the nature of iointenancy is such, that he that suruiueth shall haue the whole tenancy according to such estate as he should haue had if the jointure had still continued. For if there be three iointenants in fee simplo, and the one of them hath issue& death, yet they that survive shall haue the whole tenements to themselves,& the issue shall haue nothing: 
little. lib. 3. c. 3. Sect. 5.  and if lands be given to two, and the heirs of one of thē, this is a good jointure,& the one hath freehold& the other fee simplo, and if he which hath the fee die, he that hath the frehold shal haue the entierty by suruiuor for the term of his life: 
little. lib. 3. c. 3. Sect. 13.  and if two iointenants be seized of an estate of fee simplo, and the one of thē granteth by his dead a rent charge to another man out of so much of the land as belongeth to him, in this case during the life of the grauntor, the rent charge is effectual, but after his decease the grant is void, as to charge the land, and he that holdeth by the suruiuor shall hold it discharged, because he claimeth the land by suruiuer and not by discent from his companion: 
Littlet. lib. 3. 1. 5. Sect. 15.  And so the lawe seemeth to haue been when one jointenant did enter into religion, least the freehold of a moiety might be in suspense, as well as an assize of Mordauncestor will lye, and a warranty collateral may descend in the like case. 
Fitzh. N. B 166. a. 5. E. 4. 3. 34. E. 3. Garrantie. 71.   Nomoma. 
If a man grant all his goods to two what passeth by this.  Cadicgn. 
By our law all corporal things pass both in demesne, and possession, 
1. That by the civil lawe by the oint gift of all the goods of a man all corporal. things pass.  and they are iointenants of them, 
ff. eo. l. 1.& 2.  but actions do not pass, but the grauntor if he will haue the grantees to take any benefit by the grant, must make the grantees or one of them his procurators to sue in his name, and to recover to their own use. 
L. 3. in princip. ff. eo.   Anglonomoph. 
By the name of goods in our lawe no inheritance passeth, but it is a question with us, if one devise to his wife the third part of all his goods and chattels, whether this shall be intended as they shall be after the legacies or debts paid, or as they were at the time of the devise: 
30. H. 8. 59. Dyl.  But this doubt of later time hath received decision, 
2. That by the Common law if a man devise the third part of his goods to his wife it shal bee so ranted as they wear at the time of the death of the testator. 3. That the queen may grant a thing in action.  for where a man devised the moiety of his goods to his wife, and died, it was ruled that she shall haue the goods as they were at the time of the death of the testator, if the testator bee not indebted: 
5. Mari. 164.  and as for granting things in action, we haue this positive ground in law, that the queen may grant over her rent and condition of reentrie for the nonpaiment of it, and her action or any thing that her highnesse hath in action: but contrariwise it is of a common person. 
2. H. 7. 8.   Nomom. 
Now show me of what things, and in what sort Ioyntenancie or tenancy in common maybe.  Codicgn. 

1 That iointenancy by the civil law may be of all such things as lye in contract.  It may be of all such things as lie in contract, as lamb, milk, wool, cheese and corn, and whatsoever is gained by the labour of oxen, or the harrowing of horses, or the letting to gist of kine: 
L. si non fuerint. ff. pro soc.  and by the nature of the contract, when two are agreed to bee tenants in common, of the profits coming and rising of beasts, the loss of the beasts pertaineth onely to him in whom the very property of the beasts bee: but the charge of the pasture and labour, which is to be taken about them, belongeth onely to him who is admitted to be tenant in common for the profits. 
2 That the limitation of ●enancy in common is by the party, but the construction of i● by the law.  The possession in common of beasts, doth continue until they haue young, if the possession were limited at the first until they had young: and if two be agreed to be tenants in common of al the profits of a certain ground, the tenancy in common ceaseth not till all the profits be taken: and therefore if two be agreed to be tenants in common from the Calends of March, until such time as their fields are new to be tilled& sown, they shalbe tenants in common unto the kalends of november, because betwixt both the kalends the fields may be tilled& so when, or suppose that they haue contracted a tenancy in common of kine, from the Calends of july, until they haue young, this tenancy in common shal continue till the Calends of april next ensuing, because for the most part they are wont to calf betwixt both the Calends. 
L si conuenerit in princ. ff. pro socio.   Anglono. 
A person may grant to another the moiety of his tithes for yeares, whether it be lamb, wool, or corn, and yet he hath no possession of them, because they are not yet in esse, 
38. E. 3. 6.  but yet he hath an interest in them, and may grant the moiety of them as well as one may grant to another, that it shalbe lawful for him to take every year a Deere, or a Hare, or a coney within his soil, this is a good grant: 
10. H. 7. 30  and by the same reason that he may grant his tithes, he may grant the moiety of them, and so make a tenancy in common.  Nomoma. 
Suppose the case to be this, that two Iointenants or tenants in common haue agreed to make a common wall about their ground, or that they should plant a certain number of trees in their common soil, and one of them alieneth his part, whether is his Assignee bound to perform the covenant?  Codicgn. 
In our law there be many authorities, 
1 That an assignee in the civil Law is bound by the covenant of his grantor.  that he ought to perform the covenant. 
L. quaesit§. quod a Titio ff. de praeca.& arg. l. in hoc judicium§. penult. ff. de commun. diuid.& ff. de damn. infect. l. fluminum§. adducitur.& ff pro soc. l. Idemque.   Anglonomoph. 
To that our Law agreeth, for if a man lease a house and land for yeares by dead indented, and the less doth covenant that he and his assignees shall repair the house, 
2 That by the common Law in su h case the assignee is bound by the covenant.  and after the lessee granteth over his term, and the assignee doth not repair it, an action of covenant lieth against the assignee, for this is a covenant which runneth with the land: 
25. H 8. Br. couen. 32. Deputic. 16.  and according to Mr. brooks opinion, it lieth also against the lessee after that he hath assigned over his term: and if he bring several writs of covenant against them both, there is no remedy, till he haue had execution against one of them, and then if he sue the other, he may haue an Audita querela. 
Br. Couen. 32.   Nomom. 
I will content myself at this time with your instructions touching iointenants and tenants in common, and will pass over to the examining of the course of Exchanges.   

The sixth Dialogue of exchanges.  NOmomath. 
What if two do deal together after this sort: the one of them giveth a horse and x. s. for the horse of another man, whether is this a bargain and sale, or an exchange.  Codicgn. 

1 That by the civil law ●ontracts for a certain price are not exchanges.  In such case either it is intended, and uttered betwixt the parties, that the one shal haue such a thing for a certain price, as namely, that A. shall haue the horse of B. for ten pounds: and B. taketh of A. six pounds and an other horse in full payment& satisfaction: this is clearly a bargain and sale 
L. tenetur.§. 1. de action. emp. : but if A. had given B. a horse for a horse, that had been an exchange 
Ar. I. item si pretio.§. 1. ff. locat. .  Anglonom. 

2 That by the Common law the word ex c●●●● am must bee v●ed in the exchange.  By our Law there must be the express word of exchange mentioned, otherwise a thing can not be said to pass by exchange, for the word excambium only maketh an exchange, as the words liberum maritagium only do make frankmariage: for if I give to one an acre of land by dead indented, and he by the same dead giveth to me another acre for this acre, nothing passeth except livery be made, and then the livery onely transferreth the land: otherwise it had been if the word( exchange) had been used in the deed, and the estate which the parties are to haue in the land exchanged ought to be equal: 
3 That the estates must be equal.  and Choke saith, that both the things exchanged, ought to be in esse at the time of the exchange, and therfore an exchange of land for rent granted de novo, is not good, 
4 That the things exchanged must be in Esse.  but an exchange betwixt a rent and a common which are in esse at the time of the exchange, is good, and so it is of land and rent: 
9. E. 4. 21. {per} Brian, Choke,& Nedham.  And according to his opinion an exchange of the right which the disseisee hath, to the land whereof the disseisin is committed, for an acre of land in which the disseisor hath right, is no good exchange: 
3. E. 4. 10. {per} Choke.  And where the word( exchange) is mentioned, though the conveyance bee but an Indenture of covenants, yet it shall amount to a good Exchange: for an Indenture of covenants was made betwixt a Prior and the Master of Gunnell Hall in Cambridge, that the Master should haue three acres of land to him and to his successors, in perpetual exchange for one chamber of two chambers to bee assigned by the said Master at his election to the said Prior and his successors; this hath been held to be a good exchange, though it bee by way of covenant: 
9. Ed. 4. 38.  And though it bee avouched for lawe, that if by a dead of composition it be agreed betwixt two, that the one shall haue such lands in allowance of other lands belonging to him, that this is a good exchange: 
3. E. 3. 19.  yet I doubt whether an exchange may be accomplished by such counteruaileable words: 
5. That an exchange is good, though the one part of it do enure by way of extinguishment.  but a man may give land in exchange for a release which cannot injure but only by way of extinguishment, though there be some authority against it, 
7. E. 3. 37.  and therefore Nortons opinion is justly denied by Thorpe, whereas he held that in every exchange there must be a mutual transmutation of the possession, 
16. E. 3. Exchange 2.  for if a man release to another his estouer of wood, which he is to take yearly in his wood, in exchange for land given to him in exchange for the same release, this is a good exchange though the release take effect by way of extinguishment: but it is as great a profit and advantage to the tenant to be discharged of the estouers, as if so much had been granted unto him out of another mans wood, 
Park. Tit. Exchange 53. 31. E. 1. Exchange 16.  and the Law well perceiveth the profit which a man may haue by way of extinguishment, for if the father being tenant in tail do alien the land entailed with warranty, and hath a rent charge in fee issuing out of the land of his son which doth descend unto the son, this is a good assets in value notwithstanding the extinguishment. 
31. E. 3. Garranty 29.   Nomomath. 
Whether may ecclesiastical benefice, promotions, and livings be exchanged or no.  Canonolog. 

1. That incumbents may not exchange. their benefic●● by the Canon law.  The incumbents may not by their sole authority change their benefice, but they may exchange them interueniente authoritate Episcoporum, ad quos pertinet collatto: but there is a question in the gloss, whether the chapter may authorize such permutations seed vacant 
C. quaesitum de rer. permut. glos. in Clem. unica. E. Tit. : and it resolveth briefly, that in such things, 
2. That the chapter may warrant permutations feed vacant in such benefice wherein they haue interest or authority.  wherein they haue a common collation, either by reason of authority, or by reason of interest& consent, it may authorize exchanges seed vacant, but a in other cases not. 
Glos. in d. Clem. vnic. supper verbo. Conferantur.   Anglonomophylax. 
The reason in our Lawe wherefore such cclesiasticall persons, 
3. That by the Common law Ecclesiastical persons their patrons and ordinaries joining together cannot make any good exchange of ecclesiastical benefice.  nor their patrons and ordinaries, though they all agree cannot exchange the inheritances of spiritual livings, is because the statute strictly provideth that no alienation be made in mortmain: for a thing which was amortised before, may be again amortised, and therefore if a religious person do appropriate a Church which is of his own presentation without the kings licence, it is forfeited though it were amortised before, 
19. E. 3. Mortmain 8.  and in such case where one Abbot did alien to another, the collusion was to bee enquired of, as well as in the alienation of land made by a secular man to a religious corporation, 
16. Afs. pl. 1.  for the words of the statute of mortmain bee very strong and large against such purchaser, 
4. That th● statute of Mortmain is most strict and pregnant in words.  which are thus: Prouisum est quod nullus religiosus emere, vel sub colore donationis, aut termini, aut alterius tituli cuiuscunque ab aliquo recipere, aut arte vel ingenio sibi appropriare praesumat, per quod terrae,& tenementa huiusmodi ad manum mortuam quocunque queen modo deueniant, 
Stat. de religios. 7. E 1. Mortmain. 3.  and therefore the case was, that a femme sole purchased land in fee, and took to husband the villain of a Bishop, which he had in right of his bishopric, and the Bishop entred and this was adiudged a mortmain, for according to Wickinghams opinion the words of the statute of mortmain are quocunque modo: otherwise it shall bee if the tenant of the Bishop do die without heir, 
41. E. 3. 21.  but 19. Henr. 6. the contrary is held to be law, but if the villain himself purchase land, it is held there that in such case a Bishop or an Abbot cannot enter, 
19. H. 6. 56.  but Thorps opinion is 41. E. 3. that though he may not enter in the case aforesaid, yet he may retain the land against the villain, and the king may afterward ratify his estate, which is no more in plain terms, then that an estate so gained is voidable only and not voided, and as to the exchange of benefice betwixt person and person it is severally punished by edict of Parliament in our realm. 
31. Eliz.   Nomomathes. 
I will not stay longer vpon the inquiry of exchanges, for you haue opened unto me the nature of them, and how far they extend in these few cases: now let us pass to a larger examination of these doubts and points of devises and legacies.   

The seventh Dialogue. Of devises and Legacies.  NOmomathes. 
First I pray you tell me, whether this manner and custom of disposing by a mans last will and testament, hath been in ancient time practised or no.  Codicgn. 
It is very ancient, 
1. The antiquity of wills.  for it was one of the laws of the twelve Tables, uti legassit suae rei ita ius esto, 
L verbis legis ff. de verb. signif.  But before Solons time it was not lawul for a man to devise his goods Extra familiam, to strangers: and therefore, when Solon did( by law established) grant this liberty to the Athenians, it was plausibly received of them, and accounted the best of all his laws. 
Plutarch. in Solon.  But Plato in his writings strangely, howsoever divinely conceited, dispraiseth this law, 
2. Plato his exception against Solon hi law concerning wills.  and calleth the makers of it childish, because by that mean, a window is opened to deceit,& to flattery: for he saith, that when men are at point of death, they begin to dote, and their understanding is broken, and therefore it is very likely, that every man dying will dispose and appoint many things contrary to the Lawe, to the usual practise of them that live,& to the example of their ancestors. 
plate. li. 11. de legib.  This sentence of Plato, justinian an Emperour exquisitely busied in the compiling of laws, because he had rather err with Plato, then yield unto the truth with Solon, alloweth, and frameth his laws accordingly, 
Authent. de trient.& sem. in l. Paulus ad Treb.  and S. jerome writeth, that Solons Lawe was repealed in his time, because Priestes which were commonly employed in the making of wills, did greedily and odiously draw to themselves, the inheritance of the dead, 
L. 1. C. de sacr. Eccles.  and another reason may be added in defence of Platoes opinion: because men in danger of death are for the most part too prodigal, which Aristotle noted, 
Diogen. Laerti. in vit. Aristotel.  and Tacitus pronounceth more peremptorily speaking of Otho, 
Tacit. lib. 2. histor.  Pecunias distribuit parce, nec tanquam periturus, having affirmed before, Difficilius est temperare, 
3. Solons law is maintained and defended against Plato.  qua te non putes diu vsurum. But Solons Lawe leaneth to a more stable roote, then that it may bee shaken by the weak blast of such colourable reprehensions: and Solon did make exceptions to his Lawe for he made these testaments void which were made by any in the extremity of his disease, or which a man was enforced to make by imprisonment or torment, or by the persuasions and flattery of his wife: but surely the making of wills is necessary, 
L. 3. D. qui test. fa. pos.  and without it men cannot effect the good education and bringing up of their children, nor bee able of their proper goods, chattels, and other movable substance to discharge their debts, and after their degrees set forth and advance their children and posterity: 
32. H. 8. c. 1. wills 2.  nor leave their wives such comfortable support as in conscience they ought.  Nomomathes. 
Let me know I pray you what persons may be legataries or devisees, and who not?  Codicgnostes. 
every one that may bee made heir or executor may bee a legatarie or devisee, 
1. Such as be uncapable of inheritances& goods may not be devisees, heires, or executors by the civil law. 2. A difference in the civil law betwixt the making of a devisee and the making of an executors.  but to thē, which are uncapable by Law of inheritances or goods, no devise can be made, neither can they be made heires or executors; 
C de haered. institl. 1.  but there is a difference betwixt the making of a devisee and the making of an heir or executor, because he that is to bee made heir or executor must bee an able person in law, aswell at the time of the making of the testament, as at the death of the testator, and the undertaking of the executorship, or entre into the inheritance: 
ff. de haered. Insti. l. si alenum§. de extraneis& just. de haerqual.& differ.§ in extraneis.  but as to the devisee it is sufficient if he be capable at the time of the death of the testator. 
ff. de donat. causa mort: l. in mortis.& de conduit:& daemon. l. eum qui.& ff. de jur. fisc: l. non intelligitur§. quando.   Anglonom. 
By our Law to all such persons, to whom a grant may be made, 
3. That by the Common law a●perious to whom a grant m●d be made a devise may be made, unless it otherwise happen in some few cases.  a devise may be made, unless it otherwise happen in some few cases, and the devise ought to be good& effectual at the time of the death of the deuisor: as if a man seized of lands devisable, do devise the same to the fellow of a college, or the Priestes of a Chauntery, and there is no such college nor Chauntery at the time of the death of the deuisor:& after such a college or chauntery is made, yet the devise is voided, because devises are purchases, and when a man taketh lands or tenements, by purchase, 
4. That the de●isee must be a person capable of the thing devised.  he must bee an able person to take when it falleth to him by the purchase, 
Park. 97. Sect. 505. 9. H. 6. 23. 2. Eliza. 119. Pl. 18. Dy. 13. Eli. 303. Pl. 46. Dy& 300. Pl. 39.& 5. E. 4. 6. {per} Billing.  and the commonalty of a guild, which is not incorporate by the kings charter to purchase lands, is not capable of land; and if a man seized of lands deuiseable in fee, do devise the same land to A. for life, to find a Chaplein chanting in the Church of Dale, the remainder to two of the best men of the guild or fraternity of Whittawers in London to find a chaplain &c. if the Whittawers bee not incorporate by the Kings charter,& enabled to purchase, this remainder is voided: 
Park 98. sect. 510. 49. E. 3. 3.  and if a rent be granted for life to I. S. the remainder in fee to him that shall first come to Powles the next day in the morning, this remainder is good though it be vpon condition, if I. S. die not before the next day, and if one come to Powles the next day in the morning, if he which cometht hither then be not a person disabled to take by the grant, 
30. assis pl. 47. Perk. 13. Sect. 56.  so that whereas you say that by your Lawe it is sufficient that the devisee bee capable at the time of the death of the testator, 
5. That by the Common law the devisee ought to be capable at the time of the death of the deuisor.  so it is likewise by our lawe: for though a man may not grant nor give lands to his wife during the coverture, because they both are but one person in lawe, yet by custom heretofore, which the Common lawe did favour, and now by statute, he might or may devise his lands to his wife to haue in fee simplo, or otherwise, because such devise taketh not effect till the death of the deuisour, 
little. lib. 2. c. 10. Sect. 8. 27. Assis pl. 60.  and then they are not one person. 
24. H. 8. Br. devis. 34.   Nomom. 
Now let me know what things may be devised.  Codicgn. 

1. That by the civil law all such things may bee devised as the testato hath in his own right at the time of the devise.  whatsoever things the testator hath as in his own right, 
ff. de legate. 2. l. vinum§. si rem tuam. & if he happen to devise a thing, which is not his own but an other mans, the executoris by our Law compellable to buy it, and to give it to the devisee by virtue of the will, or if the owner will not sell it, he ought to pay the very value and full estimation of it to the devisee, 
ff. de legate. 3 l. dubium§. ulti.  and if land bee bought by the deuisor, for which he hath not payed any money, or not all the money, if he dyed, and the devisee will haue the land, he must pay the money, and so enjoy the land, 
L. 39.§. Idem julianus de legate. 1.  but if the deuisour haue sold land, and hath not received the money, and he deviseth the land so sold to I.S. the devisee in this case shall not haue the land sold, but the money that is to bee payed for it, for an argument is rightly drawn ab augmento ad diminutionem, 
L. si ex toto eo. Tit.  so that this conclusion may bee made, is the thing bought due to the devisee? then the devisee ought to pay the money: is the thing not sold not due to the devisee? then he must haue the money that is to bee payed for it.  Anglonomoph. 
In our Lawe the making of a Testament hath three parts, Inception, which is, 
2 The three degrees of a testament by the common law.  the writing of the Testament, Progression, which is the publication of it,& Consummation, which is the death of the party, and when after the devise the deuisor purchaseth other lands, 
3 A difference in the common law where a man deviseth a thing whereof he is not seized particularly,& by name, and where not.  it cannot bee intended by any possibility that he would haue them to pass by the devise: for there is nothing contained in the will which doth purport such intent: but it was held in Brettes case, that if a man devise land in certainty, as the mannor of Dale, or white acre, and he hath no interest nor possession in them at the time of the making of the will, and after the deuisor doth purchase it, in such case it shall pass to the devisee, for then it shalbe taken that his intent was to purchase it as it is said 39. Hen. 6.13.& it was likewise said that the statutes of 32. and 34. Henr. 8. required that the deuisors should bee seized of the land devised at the time of the devise, for the words be every person having, or which after this act shall haue &c. 
10. Eli. come Brets case, per Louell& touts less just'.   Nomom. 
I pray you let me know more particularly what things may be devised.  Codicgn. 

4. That things which are not in esse at the time of the devise made may be devised.  A thing may be devised which is not in rerum natura at the time of the devise, if afterward it may bee, as the corn which shall grow in such a soil, or the lambs which shall come of his flock of sheep in such a field, 
Instit. de legate.§. ea quoque res,& ff. de legate. 1. l. quod in rerum.  but if the testator do devise ten quarter of corn coming of the corn which shall grow in such a soil, or two tons of wine of his grapes in such a vineyard, or ten lambs of such a flock, though so much corn, or wine, or so many lambs do not arise of the things abovesaid, yet the heir or executor is compellable by law to make them good integraliter, because he may seem to haue mentioned the soil, the vineyard, and the flock, rather by way of demonstration then by way of condition: 
l. quid testamento in prin. ff. de leg. 1.& l. Paulo Callimacho.§ julianus severus ff. de legate. 3.& l. Lucius ff. de alim. leg.  but if the testator do devise certain goods, or a certain sum of money to I. S. and in his life time after recovery of his health, he giveth the goods or payeth the money to the said I.S. now without any alteration of the devise in the will, the executors shall bee discharged of performing the devise after the death of the testator. 
l. Lucius Titius in testamento in prin. ff. de legate. 2. gl. in Clem. dudum. de Sepulture.   Anglonomoph. 
It is said in our books that if a man which hath estate for life, 
5 That the devise of tenant for term of life or tenant in dower, of corn growing at the time of their death is good  or tenant in dower do devise their corn growing vpon the land at the time of their death, this is a good devise, and he in the reversion shall not haue the corn, 
4. H. 3. devis. 26.  But if a man seized of land in fee as in right of his wife, do lease the same land for yeares to a stranger, and the lessee soweth the land, and after the woman death, the corn being not ripe, in this case the lessee may devise the corn growing upon the land, and yet this estate is determined, and it was certain, but a thing non-certaine was the cause of the determination of it: 
7. E. 3. 67. 7. E. 4. 17. Park. 99. sect' 513. 10. E. 3. 29.  And if a man bee seized of land in the right of his wife, and sow it, and deviseth the corn growing vpon the land, and dieth before it bee severed, the devisee shall haue it, and not the Wife: but otherwise it is of herbs or meadow growing upon the land, and not severed at the time of the death of the deuisour. 
7. Ass. pl. 16:  And if tenant in tail of land lease the land for life, and the lessee soweth the land with corn, and the tenant in tail dieth, and the issue recovereth in a Formedon in discender before the corn bee severed, the issue in tail may well devise it, 
Park. devis. 100. sect. 520.  and if a man which is seized of land in fee, haue issue a daughter and dieth, his wife being grossement enseint with a son, and the daughter entereth and soweth the land, and after the sowing and before the seuerance the son is born, and one of his next friends entereth for him, yet the daughter may devise the corn growing upon the land, 
19. H. 6. 6.  And the Statute of Merton, which saith that omnes viduae possint legare blada is but an affirmation of the common Law which was used in the the time of king Henry the third above mentioned, in the beginning of his reign: And so it is of other things future contingent, they may bee devised well enough, for if a man enfeoff a stranger of his land upon payment, or non-payment on the parte of the feoffee, as if the feoffee shall pay unto the feoffor twenty pounds at the feast of Easter next ensuing, that then he may retain the land to him and to his heires, and if he do not pay that then it shall bee lawful for the feoffor to re-enter, now if the feoffor make his will, and devise the money when it shall bee paid to A. and dieth before the day of payment, this is a good devise condicionally, that is, if the feoffee pay the money to the executors. 
12. E. 3. Condic. 8.  For when the party hath a lawful and a certain interest in a thing, 
6 That when the party hath a certain,& lawful interest in a thing he may leanse it, grant it, or devise it before the existence of it.  he may grant, lease, or devise it before the thing haue actual existence, therfore the saying of Master Keble( that worthy man) is well to be marked, when he saith that the King cannot grant any disme before it bee granted by his Highnesse by Parliament, neither a wardshippe cum acciderit, otherwise it is of the amerciaments of his tenants in such a village, the wreck of the Sea or catalla felonum, for he hath an inheritance in them and a possession in law, but in the disme he hath no interest before the grant. 
21. E. 4. Abbot de Walth. case 45. {per} Keble.   Codicgn. 
By our Law a man may devise to one that he shall haue yearly xx. 
7. That a devise may be vncertai●e, but yet good in law, because it may by special means be reduced to certainty.  load of ston out of his quarry in Dale, or three load of wood out of his grove or copies in Sale, 
ff. de legate. 1. l. apud Iulian̄§ si quis.  and if the testator do devise one of his vineyards, one of his horses or one of his ricks of corn, it shal be in the election of the heir or the executor, what vineyard, what horse, or what ricke of corn he will give him, so that he give him not the very worst, but these which be indifferent. 
l. legato generaliter ff. de lega. 1.   Anglonomoph. 
So in our law a man may grant, and therefore as I think if one devise unto another one of the horses in his stable,& he hath five in his stable, the grantee may choose which of them he will haue: and if a man grant to one xx. s. of rent charge, or xl. s. of rent charge, I may distrain for which of the rents I will. 
9. E. 4. 39. 11. E. 3. Annuity 27. Park. Grants 17. sect' 74.   Nomomat. 
Let me ask you this question: The Testator having but one daughter, deviseth by his will that 1000. li. shalbe paid for the marriage of his daughters, meaning as well other daughters that should bee born as her that is living: there is none afterward born, the testator dieth, whether is the executor bound to pay the whole thousand pounds to the daughter that is living.  Codicgn. 
I think he is bound by Law to pay 
1. That by the civil law In●● Acresendi tak●th effect in legacies.  the whole sum unto her, 
l. qui qaurtā§. fin. ff. de legate. 1.  for ius accresendi habet locum in legatis, 
d.§. fin. cum l. scq.& l. a Titio. ff. de verbo oblatio.  and so if the testator do devise that if he shall haue a daughter, the executor should give a C. li. for the marriage of his daughter, and two daughters bee born, now the executor shall pay to every of them a C. li. 
l. qui filiabus§ fi quis ita. ff. de legate.  and if the case bee, that the testator doth devise the sixth part of his houses, of his lands, or vineyards to Sempronius, whereupon Sempronius demandeth a sixth part of every house, of every farm, and of every vieneyard, and the heir saith that these things cannot well bee divided, but that he is ready to pay to the devisee the very value of every sixth parte, 
2 Whether, when the 6. part of a thing is devised the heir is compellable to divide it by the civil law, or to render the value.  the question is whether the law regardeth this answer of the heir, and for this doubt wee haue this general decision: if the thing which is so to be divided, be indivisible by the nature of it, or if it cannot bee commodiously divided, the heir hath the choice to pay the value: but if it be deuisible then the law is otherwise. 
l. non amplius§. cum bonorum. ff. de legate. 1.   Anglonomoph. 
As to your last case our law doth accord with yours, for legacies shalbe favoured and ordered as dower is, and if a woman haue title of dower to a house, a chamber in the house may be allotted unto her, 
3 That by the common law sometime there may be a seuerance of the thing devised: sometime of the profits of the thing or of the advantage.  as the third part of the house or in allowance of her dower, but she shal not so be endowed of a milne, but shall haue the third part of the profit of the milne, because the milne cannot be severed, and a woman may be endowed of a villain engross as to haue his services every third day, and of an advowson in gross to haue the third presentment, and of the moiety of an advowson in gross to haue the sixth presentment, and a woman shall be endowed of a bailiwick to haue the third part of the profit of it. 
1. H. 5. 1. 45. E. 3. Dower 50. Na. Br. 7. 2. H. 6. 11. 13. E. 2. Dower 161. Fitz. na. br. 148 C. 150. G. 149. K. 148. C. 12. E. 2. Dower 157. 11. E. 3. Dower 85. 15. E. 3. Dower. 81.   Nomomat. 
Let the case bee that the testator deviseth to one a plot of ground, and speaketh nothing of the house which is built upon it, whether shall the devisee haue the house.  Codicgn. 
By our Lawe he shall haue the house, 
1. That if a man devise a plot of ground whereon a house is built the house also passeth.  whether it were built before the Testament were made, or after, 
l. servum filii§ si arcae ff. de l. si arcae. ff. de leg. 2.  and wee haue a rule in our Law, Quicquid plantatur, seritur, vel in aedificatur, omne solo cedit, radices si tamen egit.  Anglonomoph. 
It is so likewise in our Lawe, 
2. A house built vpon land en●ailed after the gift shalbe recovered in a Formedon.  for if a man give land in tail, and the donee buildeth a house vpon it, and dieth without issue, the donor if he bee deforced from the land, shall demand it in a Formedone per nomen messuagij. 
32. H. 8. 47. Dyer.   Nomomat. 
Put case the testator deviseth to one a deed or Instrument containing a certain debt, whether doth he devise the debt or no. 
l. servum filii§ eum qui chirographum de legate. 1.   Codicgn. 
In that case the debt passeth, 
l. servum filii§ eum qui chirographum de legate. 1.  but if ten several payments ought to bee made by the condition of a bonde, 
1. That by the civil law when an especialty containing a debt is devised to one, the debt itself passeth.  as suppose ten pounds is to be payed yearly by ten several payments, and five yeares be past, and five payments made, and the testator deviseth the sum comprised in the condition to I.S. in this case the devisee shal not recover against the executor the whole sum contained in the condition, but five pounds onely. 
d. l. servum filii§. said et fi nomen.   Anglonomoph. 

● Master Parkins his opinion touching the devising of an obligation is examined.  Master Perkins, a man that writeth of diuers Titles of our Law, rather subtly, than soundely, saieth, that if twenty pounds bee due to a man vpon an obligation or a contract, which ought to be paid at the feast of Easter, and he deviseth it to a stranger, this is a good devise, if the money bee afterward paid: but if he had devised the obligation, or the counterpaine of the Indenture of covenants, wherein the bond is contained, the devisee shall not use an action upon the bonde in his own name, but he may give or sell the obligation to the obligor, or to a stranger, 
Perkins 101. sect' 527.  but how bonds, or things in action may pass directly from one to another by way of grant, or devise, I cannot yet perceive by any authentic opinion in our year books: for to say that the especialty, or bonde containing the debt or duty, doth pass unto the devisee, though the debt do not pass, as namely the parchment, ink, and wax, but not the sum contained, is as if one should imagine, that a man roweth over the Thames in body, and yet remaineth at the Temple stairs in soul; for if the debtte being principal do not pass, I cannot understand how the parchment or paper, or the deed itself, being the accessory can pass, for accessorium sequitur suum principal.  Nomom. 
resolve in this, if a man devise to an other a horse, a garment, or the like,& they perish in the hands of the executor, whether is the executor bound by Lawe to make them good.  Codicgn. 
In such case either the executor doth linger and delay the delivery, or giuing of the thing devised to him, to whom it was devised,& then I doubt not, 
1 That by the civil law the executor is bound to make good the thing which perisheth through his default.  but he is bound to pay the value of the thing which perisheth through his default, or there is no default in him, and then he is not to bee charged with the making of it good, 
l. cum heres§. fi.& l. huius modi,§ si cvi homo. ff. de legate. 1.  and then the executor or heir may bee said to delay the administratio of the legacye, when he may speedily perform it, and will not but if he be by the act of a stranger hindered from executing the bequest, as suppose he hath not the money ready which is devised, or the devise bee that he shall purchase another mans land with the money of the deuisor, 
2 That in some cases the time of performing legacies is left to the discretion of the Iudges  and assure it to I.S. if he cannot easily compass this purchase doing his best endeavour, the rigour of law is to be tempered in this case by discretion, and respite must bee given by the arbitrage of the judge. 
l. si domus§. in pecunia. ff. de legate. 1.   Anglonomoph. 
In our law wee haue many cases, wherein they that are charged with the delivery of a thing vpon some trust and confidence reposed in them, 
3 That by the common law the executors are bound to perform the devise in convenient time.  and the thing that should be delivered perisheth through their default, they are enforced by lawe to make full amendes, for if a man be seized of land devisable in fee, and deviseth by his Testament that his executors shall sell his land, and shall distribute the profits coming thereof to the use of the poor, and the deuisor dieth, if a stranger tender unto them money for the land, but not so much as the land is worth in their opinion, and they to the intent they may sell it more deere, defer the sale for two yeres space, and take the profit themselves, now the heir for their long delaying may enter, 
4. A diversity betwixt an obligee and a devisee.  and put them out of the land, 
38. Ass. pl. 3.& 39. Ass. pl. 3.  but if a man be bound in xx. li. to pay x. li. at the feast of Saint Michael, the obligee refuseth the money when it is tendered in pollardes, which afterward are embased, the obligo● shall bear the loss of the embasement, because he must pled vncore priest, 
7. E. 6. 83. Dyer.  and yet the refusal was the default of the obligee.  Nomom. 
Put case that a man deviseth to one a bedstead, whether shall the devisee by force of this devise haue the curtains of the bed.  Codicgn. 

1 That things which a e accessory do pass with their principal.  The accessary goeth always with the principal, and the curtains therefore in this case shall pass with the bedstead; 
l. liberorum§ fin.& ibi glow. de legate. 3.  so if a man devise to one his land or his house, the arrearages due by the farmer or inhabitant from the death of the testator are payable to the devisee, but not the arrearages before. 
l. praedijs.§. 1. ff de legate 3. l. Nomen.§. filio ex parte de legate. 3.  And if a house bee devised, the Bathe belonging to the house, and the orchard also which belongeth to it do pass, if from the house there bee a way to the Fathe or orchard, for then they may well bee said to belong to the house and to be provided for the benefit of the inhabitant; 
l. praedijs in§ balneas,&§. qui domum ff. de legate. 3.  and if a man do by his last will devise land,& live many daies after the testament made,& in his life time a mine of coal, 
2 That a mine of coāle pass h with the land ●f it be jointly used with it, otherwise it is if it be severally used.  led or tin is opened and discovered in the soil, then the testator death after that he hath used the mine jointly with the land, in this case the devisee shall haue the mine, but if he had demised for life, or for yeares, the mine to one, and the land to an other, so that they had been severed, and disjoined in particular interest, then the devisee should not haue had the mine, 
l. cum fundus nominatim. ff de legate. 2.  but if the Testator devise all his corn which he hath in such a barn, and the devisee being one of his household seruants, of purpose bringeth a greater quantity of corn into the barn, the devisee shall not haue this increase, because it grew by the fraud of the devisee. 
cum ita legatur in princ. ff. de legate. 2.   Anglonomoph. 
As to your two last cases, devises( as I haue said before) are so to be favoured as dower, and I think that if a man do marry a wife, and die seized of land, and after his death a mine of coal is discovered in the ground, 
3 That a woman shall bee endowed of a mine of c●ale discovered after her husbands death.  and then the woman bringeth a writ of dower, shee shall haue her dower as well of the mine being parcel of the land, as of the land itself being the principal, 
14 E. 3. Ad. measurement 10. 13. E. 1. ●tin: North. 17. Fitz. na. br. 149. C.  and as to your other case where the corn in such a barn is devised,& it is afterward increased, the devisee shall haue no more corn then was in the barn at the time of the devise, for it is as much as if he should haue said( al the corn which he now hath in his barn) for words of the present tense which hath a present beginning and ending, may not be drawn either to a time past which hath had his beginning and end, 
4. That words of the present tense in a devise may not be extended to the future tense  or to a time future which hath neither beginning nor end, and therfore if a man be bound to keep the prisoners of the gaole of D. that they shall not escape, this shall extend onely to the prisoners which are in the Gaole at the time of the making of the bonde, and not to such which shall bee afterward in the Gaole, unless it had been expressly said which be, or shall be in the Gaole, 
21. H. 7. 37.  and so if the queen grant to me visum franciplegij in omnibus terris meis,& feodis, I shal not haue view of frankepledge in any lands, but such as I haue at the time of the grant, 
38. H. 6. 10.  so if a man be bound for the tenants of I.S. it shall bee intended of these tenants onely which I.S. hath at the time of the obligation made, 
39. H. 6. 6.  and if a man grant to another housewood and hedgewood, to be burnt in his houses in Dale, this shal not extend to houses which are afterward built, 
Temps E. 1. Common 28.  and though Wilbyes opinion be, that if a man grant to another a way over his land with wanes, and the grantee hath no freehold at the time to which he may haue carriage, yet if he purchase freehold afterward, he may haue a way to it, and Hankeford seemeth to be of this opinion. 11. H. 4. 
21. E. 3. 2. per Wilby 11. H. 4. 82. per Hanke.  because in a general grant there needeth to bee no naming of a certain freehold, yet in that very case dubito quid sit lex.  Nomomat. 
Admit that a man devise the profits of his land for five yeares to I.S. the devisee dieth within two yeares next after the devise, then the deuisour dieth, whether shall the residue of the term go to the benefit of the executor or administrator of the devisee. 
1. That by the civil law if the devisee of a term die before the deuisor the executor shal haue the term.   Codicgn. 
Wee haue express authority in our Law that it shall. 
l. uxori vsu●●●§ quaesitum 〈◇〉 v●u●●u le.   Anglonomoph. 
Brets case which is very famous in our law is to the contrary: 
10. Eliz. 46. come. Brets case.  but if a man devise xx. li. to be payed yearly in 4. 
2 By the common law a diversity is taken where the devisee dieth in the life of the deuisor, and where after his death but before the legacy executed.  yeres after his death to I. S. and dyed,& after the devisee dieth with in four yeares, yet the executours of the devisee shall haue the money or the residue of it by suite before the Ordinary in the spiritual Court, for it is a duty by the testament or devise, 
24. H. 8. Br. devise 27. 45. Condic' 187.  and an administrator may as well sue for that duty in the spiritual Court, as he may haue a writ of covenant at the common law vpon the covenant made with the party intestate. 
Fitz na. br. 146. D. 2. Mar. 112.   Nomo. 
What if the testator do say I devise such a thing to God or to Christ, what is wrought by this devise?  Canonol. 
The thing so devised is due to the Church of the parish where the testator did dwell at the time of the devise. 
Authent. de ecclesiast' tit{ur}§. fi quis in nomine argu. l. quae conditio.§. fin ff. de cond& de monstr.   Anglonomoph. 
In ancient times such devises were good, and so was a fine levied deo, 
1. That by the civil law whe● a thing is devised to God or to Christ, it shal go to the Church of the parish wh●re the Testator dwelled.  & ecclesiae, but the lawe is now altered, 
Scir. faci. 18. E. 4. 12. 19. E. 4. 2. 4. 7. {per} Pigot in le case de Prior de Merton.  and in the one and twentieth year of King Richard the second a devise of land was made to one for life, the remainder to another for life, the remainder to the Church of S. Andrew in holborn, and this was adiudged a good devise, 
21. R. 2. devis. 27.  but now such a devise is made voided by the statute of 23. H. 8. cap. 10. but before the statute it appeareth by the book of 37. 
2. That by the common law, and by the statute of 23. H. 8 such a devise is voided.  H. 6. that vpon a gift made to the parishioners of such a parish without naming them the Churchwardens might haue an action, 
37. H. 6. 30.  but thē the gift must haue been of a personal thing, for of inheritance of land they cannot take to the use of the Church, 
12. H. 7. 27.  but if a man in ancient time had given his lands or his goods Deo& Ecclesiae sanct' Petr' Westmonast' this had been a good devise, because the church is not the house, nor the walls, but the entier spiritual house, that is the Abbot and the covent, and because they may take by such a gift it is good, but if the Abbot were dead at the time of the gift it is not good, because the covent is not persona capax: 
3. What is meant by a Church parochial according to Rolfes opinion.  but a church parochial by Rolfes opinion( as to the endowement of it with land) cannot otherwise bee intended, but a house made of stones, walls and roof, which cannot take by any gift or feoffment, and so it is of a Church conuentual which lacketh a sovereign. 
8. H. 5. 4. per Babi.& Rolfe.   Nomom. 
Suppose that two testaments be exhibited to the ordinary which were made in one day, containing several sums to the same devisees bequeathed, whether shall they both be approved, and the legacies of both stand good.  Codicgn. 

1. That by the civil law where two testaments conteigne in them several sums, that which containeth the lesser shall stand but by the common law the later.  These legacies only shall stand good, which do contain in them a lesser sum. 
l. Sempronius Procul. ff. de legate. 2.   Anglonomoph. 
In our Law we haue a case, that if a man make a Testament, and in it he maketh one only man his executor, and then he maketh another testament, and in it he maketh him and a stranger executors, and the first testament is proved, that only shall stand, 
2. H. 5. 8.  but by other authority the later onely shall take place, what sums soever the contain. 
4. H. 7. 13.   Nomomat. 
Say that an ox is devised to one,& the ox dieth without any default in the executor, whether is the skin or hid of the ox due to the devisee or no?  Codicgn. 
By our Lawe it is not due: 
l. mortuo boue: ff. de legate: 2.  for the thing devised, that is the ox, 
1 That by the civil law if an ox be devised and he die the skin is not due to the devisee  did perish and was non ens before the skin were taken off, and the skin was not taken from an ox, but from a carcase.  Anglonomoph. 
It seemeth in that case, 
2 That by the Common law, it seemeth to be due, otherwise it should be if there had been an exception of the hid.  that the devisee shall haue the hid, for it is parcel of the ox, and the ox was an entier thing, but if he had given the ox, excepting the hid, that perhaps would amount to a seuerance in law, so that the ox living should haue belonged to the devisee: but being killed the flesh should belong to the devisee, the hid to the executor of the deuisor, and if a man make a lease of land, excepting the trees which grow upon the land, the trees are severed in Lawe, for he hath no reversion of them, and if he sell them and after the sale make a feoffment the feoffee shall not haue them because they were severed by the vendition. 
20. H. 6. 22.   Nomomat. 
Put case that I.S. do borrow a C. li. of I.N. and for the sure repayment thereof he bindeth all his lands and goods by recognisans of statute merchant to the said I. N. after he deviseth all his lands to the recognisee and dieth, the recognisans is forfeited, the recognisee bringeth an action of debt,& recovereth against the executors,& hath execution of the goods of the testator by Fieri facias, and then he claimeth the land by virtue of the devise, whether is his claim good or no?  Codicgn. 

1 That if the recognisor devise all his goods to the reconusee, yet he shall haue execution of the land.  I think he may claim the land also, if it may not bee proved by circumstances, or directly, that the land was devised unto him in satisfaction of the debt,& vpon condition implyed that he should not alter the property of the goods by execution. 
l. creditorem ff. de legate: 2.   Anglonomoph. 
I do not perceive any repugnancy in our Lawe to that which you haue said.  Nomomath. 
If he had made his creditor his executor in this case, what would then haue followed.  Anglonomoph. 

2 That if the obligee make the obligor his executor the d●t is extinct.  Then the debt had been extinct: 
11. H. 4. pl. 31.  for if two bee bound to one in a certain sum of money, and the obligee maketh one of them his executor, this is a release in law of the bond, and debt to them both, 
21. E. 4. 81.  so if one make his debttor and another his executours and die, in this case if the executor, who was not indebted survive, he shall not haue an action of debt against the executor of his coexecutour, although the party indebted did not administer in his life time: for the action was once extinguished and determined, for no action can bee brought but in the name of them both, 
20. E. 4. 17. 21. E. 4. 3. 21. H. 7. 31. per. Fineux.  but if one that is indebted make his creditor, and an other his executors, the creditor may haue an action, if he do not administer, 
8. E. 4. 3. per Brian.  but when the testator is indebted to me, and maketh me his executor, I may detain the goods for my debt: so that it seemeth that though the action be extinct in regard of the testator, yet the debt is still in esse in respect of strangers. 
7. H. 4. 18. 27. H. 6. in Scire fac. 7. El. come Greysbrookes case 275.   Codicgn. 
When the creditor maketh the debtor his executor, by the executorship the debt is confounded, and because of impossibility in Lawe, forsomuch as the executor may not bring an action of debt against himself being one, and the same person, the obligation therefore is by secret act of law disannulled. 
Philip. Deci. ad reg. jur.   Nomom. 
Now I will put you a case, which is a common contingent, The testator ordaineth by his will that his daughters shall bee married by the appointment and disposal of Titius his brother, the testator dieth, Titius also death before he hath disposed any thing of the marriage, whether may the marriage& the portion be arbitrated and disposed by some other or no, as namely by the executor of Titius?  Codicgn. 
I think the executor of Titius may well enough order and accomplish this matter according to the degree of the daughters, 
1. That by the civil law if a man ordain by his will that his daughters shall mary by the appointment of Ti●●●s, that Titius his executor may dispose of the marriage.  the wealth of the father, and the number of the children. 
l. fi filiae parèr ff. de legate. 3.   Anglonomoph. 
I think quiter contrary because there is a confidence reposed specially& incommunicably in the person of Titius, and there bee many cases in our Lawe to prove this assertion, Cesty queen use before the statut of 27. of king H. 8. did devise that A.B. and C. his feoffees should sell his land, 
2. That by the Common law where a confidence is reposed in certain persons, it is incommunicaable to others.  whereof they were seized to his use. A. dieth: it was held that B: and C. could not sell the land, otherwise it had been if he had spoken generally of his feoffees, without naming them specially: 
2. El. 177. Dy.  Likewise a man devised, that after the death of his wife, his land should bee sold by his executors together with the assent of A. and maketh his wife, and a stranger his executors and dieth: the wife dieth, A. dieth, the authority of selling the land is fully determined and gone: 
5. Eli. 219. Dy.  and so it was held per curiam, that if a man did declare his will, that B. and C. his executors should sell his land and the testator death, and B. death: and C. maketh M. his executor and death, and M. selleth it, this sale is voided, for the trust is strict: but M. Brudnell saieth that if a man devise by his will that H. and N. his executors shall sell his land, and they refuse to be executors, yet they may sell the land, because they are name by their proper names: 
19. H. 8. 9.  But where the executors are not specially name for the sale of the land, there one of them only may well enough sell the land: for the case was, that a man did devise all his lands to his sister, except one manor, which he appointed to pay his debts, and he made two executors and dyed, the one executor dyed, yet the other may sell the mannour and pay the debts per intentionem testatoris, the words of the devise as touching the sale were general( which I appoint to pay my debts. 
23. Eliz. 371. Dy. )  Nomomath. 
I haue often heard, that a devise shall be taken most largely, and beneficially for the profit and avail of the devisee, I pray ye let me hear some cases, which may confirm this unto me.  Codicgnostes. 
If the testator do devise all his horses to one, 
1 That by the civil lawe devises are for the most part construed for the devises.  all his horses and mares shall pass by the devise, 
L. legatis. servis.§. iunctis. ff. de legate. 3.  and if the testator do devise all his beasts, all four-footed cattle, which are beasts of pasture, do pass by this devise, 
D. l. legatis.§. pecoribus.  and if a flock of sheep bee devised, the lambs and the rams are contained in the devise, 
L. servis legate.§. fi. ff.  but if he devise his sheep, without saying his flock of sheep, his lambs do not pass, 
D. l. legatis. servis§. ouibus.  and if a man devise his plough horses to one, and after the deuisor selleth the horses, and buyeth and useth mares for his plough, and death, now the mares shall pass by the devise, 
L. qui duos mulos. ff. de legate. 3.  and if the testator do devise to one all his wool; all his wool as well washed, as not washed, spun as not spun,& generally al his wool which is not wrought into cloth is devised, 
L. si cvi lans. in princip.& in§. lanae. ff. de legate. 2.  and herein it differeth from line, because under the name of line, even line that is wrought or linen is contained, 
D. l. si cvi lana§. lino.  so if a man devise all his silver to one, his silver cups and all his other vessels of silver do pass, 
L. cum aurum. ff. de auro& argent. leg. in princip.& l. lana.§. fi. ff. de legate. 3.  but no silver coin doth pass, 
L. Quintus. in prin ff. de aur.& argent. leg..  otherwise it had been if he had devised all his silver uer wrought or laboured, 
Ibid.  for if the testator devise to one all his cloth which is in such a chefte, no garments nor apparel are contained within the devise, but onely the rude and plain matter of cloth, because when marble is devised the imageris of marble are not meant, but the gross matter of marble, 
L. quaesitum§. illud fortassis. ff. de legate. 3.  and if wood be devised, onely wood fit to be burnt is comprehended in the devise, but not timber, 
L. ligna. ff. de legate. 3.  yet the testator his meaning is in these later cases to bee examined by circumstances. 
L pediculi§. labeo. ff. de aur.& arg. leg.   Anglonomoph. 
And by our Law, the favour of which is equally divided betwixt the aduauntag of the devisee, and the intent of the deuisour. devises are oftentimes amphated and extended by beneficial construction for the help and profit of the devisee if they be not repugnant to law: 
2 That the common law so favoureth devises that it upholdeth. equity& the correspondence of reason,  but if they bee repugnant, the Lawe then, as a lady jealous of her Iustice, doth utterly frustrate, and make void the devises: That which I affirm shall by cases and examples better appear: The L. Latimer did devise to his lady and wife the third part of all his goods and chattels, and great question was made, whether this devise should be intended of the third part of the goods and cattels as it should be after the debts and legacies paid, or as it was at the death of the testator: and whether the third part of the debts due to the testator do pass by this devise, but it was agreed by the Iustices, that by the word ( utensils) Plate and jewels do not pass, and if a man devise to his daughter five hundred pounds, for and toward her marriage, and shee death before the marriage, by the opinion of the greater parte her executor shall haue the sum, otherwise it had been if the words of the devise had been( to be paid at the day of her marriage, or at the age of 21. yeares) and she dieth before, 
36. H. 8. 59. Dy.  and 16. Eliz. A man devised land to one so that he do pay 10. li. and if not that it should remain to his house, provided that the lands shall not be sold, but shall go to the next of blood being male, it was held that this was an estate tail, and that these words( shall go to his house) shall bee construed to the eldest person of his family, and these words( being male) shall bee construed in the future tense, and in many cases an estate may be limited in a devise by implycation: as if a man devise land to one and to his heires males in fee simplo, the remainder to the next heires males of the kin, there is an intailement both in the first estate and also in the remainder, 
16. Eli. 333. Dy. 2. Eli. 171. Dy.  but where a devise is contrary to Law, it is void of effect: 
3. That the Common law frustrateth these devises which are repugnant to Law.  for a man devised land in London to the Prior& covent of S. Bartholmewes, so that they pay to the dean and chapter of Powles 10. li. yearly, and if they failed, then their estate to cease, and that the land should remain to the dean, and it was held by Fitzh.& Baldwin Iustices, that this was a voided remainder, because it could not be limited after an estate in fee, and as of a condition the dean& chapter could not haue advantage but the heir, 
29. H. 8. 32. Dy.  and so if a man devise land to one in fee,& that if he die without heir that then it shall remain to another in fee, this is a void remainder, because one fee simplo cannot depend vpon another. 
19. H. 8. 8.   Nomom. 
What if the testator do devise to his wife certain land, whiles she should live chastened, and she marrieth, whether is her estate determined?  Canonolog. 

1. That by the Cannon law if land be devised to a woman whilst she shal live chastened, marriage is not implicatively prohibited.  I think it is not determined, for though the words of the devise do imply a condition, yet the condition is not broken, because matrimonium est res honesta, and therefore not to be imagined to bee within the intent of the condition. 
Authent. de nupt. in princ. 28. quaest. 1. ca. sic enim 33. q. 2. c 2. l. 2. C. de indict. viduit. toll.   Nomoma. 
Yet it seemeth that the condition faileth, Quia coitus& castitas opponuntur, 
D. authent. de nup.§. quia vero.  therefore it may seem that she should lose the legacy as well by marrying, as by living incontinently.  Canonol. 
But I think rather that she shall not lose the legacy, because there was no condition expressed in the devise that shee should not mary, and therefore she cannot be said in marrying to do against the will of her husband: but yet it may seem, that if she had married within a year after the death of the testator, she had broken the condition, 
ff. de jur. patron. l. adigere§ fi.  for doubtless otherwise, Mulier secundo nubens castitatem servat. 
D. authent. de nup.§. fin. autem& idem Extra. de diuor. c. gaudeamus. in fin. l. mulier.§. cum proponaretur. ff. ad Trebel.   Codicgn. 

2. That the civil law, and Common law do favour marriage.  Our Lawe in such cases favoureth matrimony, 
ff. de reg jur. l. In ambiguis& l. in testamentis eod.  and where there is no condition prohibitory expressed, the Law will not in such case intend it. 
In authent. hoc locum C. de second. nupt.   Anglonomoph. 
In our Law we haue a case that King Edward the sixth granted to his sister the Lady mary the mannor of D. as long as she should continue unmarried, and this is admitted in our Law to be a good limitation but no condition, as hath been before surmised. 
4. Mar. 1. 141 Dy. ●7. H. 6. 29 1●. Ass. pl. 8. 17. Ass. pl. 7. 3. Aff. pl. 9.& 6.   Nomom. 
Let this be the case: the husband deviseth to his wife the profits of all his goods, the question is whether the wife may take the profits by her sole authority, or by the appointment of the judge, or by the administration of the excutor.  Codicgn. 
In our Lawe we take this difference: 
1. That there is a diversity in the civil law where a man make●h his wife vsutructuariam of his goods, and where he deviseth them to her.  where he maketh his wife by his will vsufructuariam of the goods, and where he doth devise unto her his goods: For where he maketh her vsufructuariam, shee may of her own power take the profit and benefit of the goods, and she needeth not to expect or attend the courtesy of the executor: 
L. si habitatio.§. si vsus fundi.& l. fundi ff. de vsu& hab.  But if he devise his goods, or the profit of his goods, or command and charge his heir or executor by his will, that they allow sufficient maintenance to his wife out of his lands or goods, now the woman is a devisee, and she must take that which is devised, by the hands of the heir or executor, or else sue for it by law. 
ff de vsufruct. legate l. patrimonij& l. si quis.   Anglonomoph. 
By our law the power and authority of delivering goods and chattels, 
2. That by the Common law the administration of the goods& chattels of the testator doth appertain only to the execu●●●●  or putting the devisee in possession belongeth onely to the executors, who must see debts paid before legacies performed: 
37. H. 6. 30. {per} Prisot 2. H 6. 16. Perkins Testam. 94. D. S. Dialog. 2. 79  And therefore if a stranger take goods devised to me out of the possession of the executours, I cannot haue an action of trespass for the taking: For it is not like to a gift of goods which is presently executed: and if a man devise the fourth part of his goods to another, the devisee may not seize the fourth part but he must sue for it in the spiritual court, 
27. H. 6.  but if a man devise a book or some other thing to one for term of life, the remainder to another for ever, if the executor deliver the book or the goods to the first devisee, the second devisee may seize them without livery of the executor, for the possession of the first devisee was the possession of them both, otherwise it is if the first devisee hath the possession& die 
37. H. 6. 30. : but if a man seize in another right then as devisee, then he need not depend vpon the delivery of the executors:& therefore the case was 9. E. 4. that an Action of Debt was brought against one as executor in London, and the defendant said that the testator did give unto him certain goods by his dead,& he shewed in particular what goods they were, the testator being at the time of the gift in the village of B. in the county of Essex,& that he suffered the goods to be in the possess. of the testator until his death at London, and after the death of the testator he took thē, absque hoc that he did administer as executor: and the whole court held that the jurors ought to find this matter of the gift of the goods vpon pain of attaint 
9. E. 4. 4●. , but where a man ought to take a thing by the delivery of another,& he taketh it of his own head, he is a trespasser: and therefore if a man grant to another an estouer of wood to be taken by the view,& delivery of his Baylie, if he take it without the delivery of the Baylie, the grauntor may haue an action of trespass against him, Quare vi& armis. 
8. E. 3. 422.   Nomomathes. 
Suppose that a legacy of money is devised to a man in regard of his wife, and the testator dieth, whether may the husband in this case demand the legacy without naming the wife?  Codicgn. 
By our law the husband may demand it, 
1. That by the civil law the husband may demand a legacy due to the wife without naming the wife.  without naming the wife. 
L. Titio centum.§. Titio genero. ff. de conduit.& demonstr.   Anglonomoph. 
I see little reason but that the husband only may demand it in his own name, he being the sole devisee: and the thing devised being a personal thing: but if it had been a real thing, and the wife had been interested in it, then the law would be otherwise.  Nomoma. 
I pray you put me some cases touching this difference, that I may better understand your meaning.  Anglonomoph. 
The writ of mesne, 
2. That in the Common Law there is a diversity as touching bringing of actions in the wifes name where the matter of the writ is real and where it is personal.  because it is in the realty, ought always to suppose the husband& wife to be mesnes, 
13. R. 2. Brie● 642.  but in a writ of trespass it hath been held a good declarion, if the plaintiff allege that the defendant entred into his mannor of Dale though he haue nothing in the mannor but in right of his wife: for this is a personal wrong done unto the husband 
4. E. 4. 31. : and by Danbyes opinion the husband taketh the profits of the land in his own right, 
Ibid. per Danby.  so that it cannot be law, which is said 21. R. 2. that an action of trespass for trees cut in the land of the wife must bee brought as well in the wifes name as in the husbands, 
21. R. 2. Br̄e 933.  and the contrary is held for Law, 6. H. 4. and 47. E. 3. because as M. Finchden saieth well, the husband onely may release the damages when they are recovered, 
6. H. 4. 1●. 47. E. 3. 9. per Finch.  neither may Husseyes opinion 7. H. 7. bee admitted for Lawe where he saith that the writ may be brought in both their names 
7. H. 7. 2. per Hussey. ,& in an action of debt brought by the husband vpon an obligation made to him and to his wife, the writ may bee brought in the husbands name only 
12. R. 2. Br̄e 639. , and so where a Lease is made for yeares rendering rent by the husband and the wife of the land of the wife, the action of debt must bee brought in the name of the husband onely 
7. E. 4. 5. , howsoever 2. R. 2. bee to the contrary that in a writ concerning a chattel real they may join 
2. R. 2. brief 37. , but where the husband is seized of a signiory in the right of his wife, a man may not make conusans as bailie to the husband, but as bayly to them both 
12. R. 2. Auowrie 88. , but that is because the conusans and auowry in such case is en le droit 
48. E. 3. 8. {per} Finch. : but as to such things which concern the person of the wife immediately, there the writ must bee brought in both their names, and therefore the husband cannot sue a writ of appeal for the rape of his wife without naming the wife 
8. H. 4. 21. 1. H. 6. 1. 10. H. 4. Br. Baron& fem. 34. , and whereas they brought an action of battery for the beating of them both, 
3. That where the wrong doth immediately concern the person of the wife, ●he w●fe must of necessity be name.  the writ was adiudged good for the battery of the wife, but not as to the battery of the husband 
9. E. 4. 54. , and the husband and the wife shall both bring an Action of trespass for the taking away of the goods of the wife before the marriage 
21. H. 6. 33. : but in a Writ of Detinue of charters against husband and wife the declaration was vpon a trouer, and the Writ was abated 
13. R. 2. brief 644. , but a Writ of covenant was brought by the husband and the wife, because the defendant leased unto them land for term of yeres by dead,& afterward outed them, and the writ was awarded to be good, for if the husband die, the woman shall haue the term 
47. E. 3. 12. , and in this case they were both parties to the covenant, and by the books of 6. E. 4.& 17. E. 4. an action of debt for the arrearages of a rent reserved vpon a Lease for yeares made unto the husband and the wife shall be brought against them both, and so shall a writ of Waste: for the wife cannot waiue the Lease during the life of the husband 
6. E. 4. 10. 17. E. 4. 7. , and 8. Rich. 2. an action vpon the statute of Labourers was brought against husband and wife supposing that the wife had covenanted with the plaintiff to be damsel or waiting woman to his wife for a year,& that she departed out of service within the year, and the writ was awarded to be good being brought against them both 
8. R. 2. labourers 59. .  Nomoma. 
No more of this matter, let me ask you farther, If the testator do devise to one within age his maintenance to be given and allowed him by his executor until he come to ripeness of age, how shal these words( ripeness of age) be understood, whether of age of discretion, or full age?  Codicgn. 
I think it shalbe meant of his full age: 
1. That by the civil law when maintenance is devised to one till the ripene● of age, is intended of full age. 2. The diversities of ages by the common law.  for that is the common intendment,& the authorities of our books do sway to that point 
l. Mela. ff. de aliment.& ciba. leg. .  Anglonom. 
In our law though there be but two ages for the heir male namely, the age of 14. which is the age of discretion, and the full age which is the age of 21. yeares 
Litt li. 2. c. 4 Sect. 8,& 9. , yet the heir female hath in our Law many ages, namely at 7. yeares to haue aid to be married, and 9. yeares to deserve dower, and 12. yeres to consent to marriage, and 14. yeares to be out of ward: and 16. yeres for the Lord to tender unto her a marriage: and 21. yeares to make a feoffment or a dead which may bind her 
35. H. 6. 40. , but by common intendment ripeness of age is fullness of age:& full age by constitution of our law is the age of one and twenty.  Nomom. 
Then I know your opinion as touching this question, now let me demand another. If the testator do devise his mansion house which he hath in the parish of S. Andrew: and that hath some appurtenances lying in the parish of saint Giles, whether do these appurtenances pass by the devise or no?  Codicgn. 

1. That by the civil law when a mansion house that is in one parish is devised, the appurtenances in another par●sh do pass by the devise.  The appurtenances do pass, and we haue good authority for it in our Law 
L patronus§. Sen pronio. ff. de legate. 3. .  Anglonomoph. 
And me thinks the appurtenances being in another parish do not pass by this devise, for not to aid myself with ancient authority of law, it hath been lately, fully,& vpon ample discourse of this very point ruled, that nothing shall bee said to bee appurtenant to a house, 
2. That by the common law land cannot be appurtenant to land.  save onely the garden, the curtilage, and the close adjoining to the house, and no other land, though other land haue been occupied with the house 
23. H. 8. Br. Feofm. 53. ; for land cannot belong to a house, because they be of several natures: for the house is a place to inhabit,& land is a thing to be ploughed, or sowed, or improved,& so cannot properly be appurtenant to a house: no more then one liberty may be appurtenant to another liberty of several natures as a warren to a leet, or a leet to a hundred 
3. Mar. come. 168. hills case, per Walpoole, Rastal& Morgan. , and all the Iustices but( cook who spake not to this point in partridges case) agreed that land cannot appertain to a house, and this montague said was a ground in the law: but Hales there said, that a garden may contain 11. acres in quantity and by such special mean be parcel of a house 
6.& 7. E. 6. Comm. 85. Partriges case. , this is sufficient to prove that the appurtenances do not in this case pass by the devise of the house, without the authority of 27. H. 6. where it is constantly avouched, that though a man may give an acre of land unto me by the name of a carve,& a carve by the name of a Manor, yet by a dead of feoffment of a house, land cannot be conveyed as parcel of the house 
27. H. 6. 2. .  Nomomath. 
Ye haue removed all the doubts touching devises which perplexed my mind:& we haue been long in conference of this title, now from real things let us pass to personal, in which I pray ye continue your pains according to your former diligence, and first ye are to speak of borrowing and lending.   

The eight Dialogue of borrowing and Lending.  NOmomath. 
I would know the perfect difference by the civil Lawe betwixt Mutuum and Commodatum, I pray you Codicgn. let me use your help herein.  Codicgn. 
They differ in our Law many ways.  

1. The difference in the civil law be-ttwixt mutuum and commodatum.  1 That which wee call Mutuum, doth consist only in things which are consumed by the very use, which consist in number, weight, or measure, as corn, spices, salt, and such like, Commodatum is that which by using is not spent,& as it is not delivered by weight nor measure, so neither is it restored by weight or measure, as books, apparel,& the like. 2. In lending that which we call Mutuum, the very property of the thing lent doth pass, 
L. 2.§. appellata ff. si cert. pet.  but wee do still retain the property of that which wee call Commodatum. 
L. rei commodatae, cum l. seq. ff. commod.  3. That which wee call Mutuum is lent for every use ingeneral, as if the lender should say unto him that borroweth, Vtare, fruare pro tuo arbitrio, sicut dominus, 
L. in re mandata. C. mandat.  but Commodatum is lent for a certain, and prescript use, 
L. in commodato.§. sicut ff. commod.  and if any man do use it otherwise, he committeth theft. 
L. 5.§. quin imo ff. eo&§. placuit. instit. de oblige. quae ex delecto nasc.  4. If the thing which we call Mutuum be made worse or perish, he to whom the loan is made shall not sustain any damages: otherwise it is of Commodatum, if through his fault, default, covin, or negligence, the thing lent do perish or become worse 
L. si vt certo§. nunc viden. vers. quod vero l. eum, qui in princ. l. ad eos,& l. argentum cum l. fin. ff. commod. .  Nomomath. 
What persons may bee bound by borrowing and lending?  Codicgnost. 

1. That particular persons, corporations and Churches parochial may be bound by contract of borrowing and lending by the civil law.  every particular person every church being parochial or conuentuall, 
In authent. hoc ius porrectum C. de sacros. Eccles.  every university, commonalty or corporation, 
L. civitas& ibi plene per Bartolum. ff. si cert. pet.  yet with this restraint if the money be converted to the use of the City or Church 
Innocent. in C. c. 1. Ext. de pos.& per Ferrar. in form. libel. de act. hypoth. in glos. supper verb. sub. ead. obligati. .  Anglonomoph. 
Indeed thereto doth our Lawe accord, for before the dissolution of Abbeys and monasteries the successor of a Prior should haue been charged with an annuity granted by his predecessor, 
2. That by the Common law Abbots, Priors and such religious persons might charge the house by their contract, and by recognisance.  pro consilio impenso& impendendo without the covent where counsel was given in the matters of the predecessor,& of the covent, for so it was a thing which came to the use of the house which must needs charge the successor 
38. H. 6. 22. 39 H. 6. 21. , and it was said by M. little. 14. E. 4. that an Abbot or Prior by matter of record as by recognisance, might charge the successor, though nothing counteruaileable did come to the use of the house, and he said that this hath been diverse times adiudged,& he said that the cause was for that the covent cannot be party to such record, but only the Abbot, otherwise it is of dean& Chapter, for the chapter may be party to a matter of record 
14 E 4. Abbe 4. , and an Abbot might haue been charged in a writ of debt vpon a loan of money made to his predecessor which came to the use of the house 
Fitz. N. B. 121. K. c. H. 6. 25. 22. H. 6. 64. , and an Abbot should haue been charged by a Writ of debt for victual and other things bought by his caterer, or manciple, or other officer deputed to make purueiance for the Abbey in time of vacation 
Fitz. N. B. 122. F. 25, E. 3. 48. 26. E. 3. 55. 4. E. 2 debt 168. .  Nomomath. 
Codicgnost. how many kindes are there of borrowing and lending?  Codicgnost. 
Two: one that is called natural, 
1. Two kinds of borrowing and lending by the civil law natural and civil.  when the thing which is lent unto A. by B. is delivered unto him by B. or by some other in the name of B. 
L. certi condictio in fin. l. singularia,& l. proinde ff. si cert. pet.& not. {per} Bartol. in l.§. appellata eod. titu.  the other is called civil which is onely contracted by the confession and acknowledgement of the party, as when a man confesseth by word of mouth or writing, that he hath had and borrowed so much of such a one 
L. 1. 2.& 3. C. de non num. pecun.& Instit. de literat. oblige. in princ. .  Anglonomoph. 

2. That the Common law acknowledgeth this difference in substance and effect.  From this diversity our Law dissenteth not: for when a man lendeth to another money, and payeth it into his hands, or some other for him, which you term a natural lending, if this be until a certain day, and the day be incurred, and the money not payed, the creditor may sue an Action of Debt against the debtor 
Fitz. na. br. 119. G. , and whereas you say that a man by confessing that he hath borrowed so much money of such a man, may make himself a debtor, it is true and agreeable to our Law, for when a man maketh such a bill, namely this bill doth witness that I. A. haue borrowed so much money of C. without saying more, this shal charge the executor as well as an obligation: and the testator could not haue waged his law against this bill: or if it be Momorandum quod I.S. debet A. B. 10. li. or that I. S. acknowledgeth that he doth owe to A.B. 10. li.& this be by writing,& be delivered as the dead of the party, this is a good oblige': for these words recepisse or debere: or teneri ad soluendum 20. li. or where a man reciteth, that whereas he borrowed of I.S. 20. li. he hath paid unto him 15. li. so that 5. li. remaineth to be paid, this is a good obligation,& shal bind the executor: for every word which proveth a man to be a debtor, or to haue a strangers money in his hands, though it be by bill, yet it shall charge the exec': As if a bill be made which witnesseth, that I haue found 20. li. belonging to I.S. without other words, I shall be charged,& shall be outed of my law 
28. H. 8. 20. Cores C. per Fitzia.& Mounteg. .  Nomomath. 
Let me know now whether usury, or lending for interest, be prohibited by your Laws yea or no? and me thinks( to speak by way of objection) that it should not, for first it seemeth nor repugnant to the law of nature or to natural reason, 
1. An vsurious lending, or lending of money for inte est, is by way of objection maintained.  because reason enforceth and nature moveth us to this, that wee should do well to them that haue done well to us, otherwise wee might incur the fault of ingratitude, which drieth up the very fountain of liberality, and besides by the Law of nature it is lawful for every one to lend of his own as he list, and to receive for his own as it pleaseth him: and it seemeth to bee permitted by the Lawe of God when it is said: Ego veniens cum usuris exegissem illud, 
luke. 19.  and so it is appointed in Deutronom. Faeneraberis gentibus multis, 
Deuter. 29.  And hereto agreeth the opinion of Aquinas, 
2. Aquinas his authority is urged for proof hereof.  who writing vpon Ecclesiast. saith thus: Faenerare proximo tuo in tempore necessitatis illius: And again: red proximo tuo in tempore suo. Multi quasi inuentionem aestimauerunt faenus& praestiterunt molestiam suis qui se adiuuerunt. Donec accipiat osculatur dantis manum,& in promissionibus humiliat vocem suam,& in tempore redditionis postulabit tempus,& loquetur verba taedij& murmurationum,& tempus causabitur 
Aquin. in Ecclesi. c. 29. : And surely me thinks it is a point of brotherly love to lend unto a needy brother a competent sum of money, so much as will serve him for a reasonable surplusage of increase.  Cononol.. 

3 The objection is answered ●ed by the Comonist.  usury may well be called the divels charity: for as the divell cannot do any good howsoever he would seem to do it, because it is against his nature to do any good thing: so his charity howsoever it may seem to do good, yet in truth cannot perform any good thing, because the nature of it is opposite to al goodness, being by Cato resembled to murder, by the Canon law to theft: 
Ca●si quis vsuram: l. 4. q. 4.  yet it maketh some show to do good, but so as if a man were troubled with a burning ague, and greatly inflamed in his body, should in the extremity of his heat ask a cup of single beer of one that standeth by,&& he reacheth it unto him, this cooleth the heat for a time, and the sick man thanketh him for it, but when the disease doth revert upon him, and his fits grow worse then they were before, and he perceiveth that the drink which he drunk hath two much inflamed him; then he beginneth to complain of the hurtful courtesy and pity of the other man: so when the vserer lendeth money at the first, he that borroweth it thanketh him and thinketh himself deeply beholding to him, but in the end when he findeth that his goods decrease, and his debts increase by the usurers kindness, when not onely pot and pan, but even garments and jewels must bee either gauged or sold to satisfy the vserer,& when they perceive the Bee that had a flower in her mouth to haue a sting in her tail, then( that is to say) too late they find that under this bait, lieth a hook, under this charity, cruelty. And as to Aquinas his opinion of this matter quis tumidum guttur miretur in Alpibus? 
4. Aquinas his authority disproved.  and who will wonder if Aquinas patronise an error in divinity? yet he defendeth it strangely; for he holdeth in the very same place, that it is prohibited by the law of God, and yet that it may be tolerated in a politic respect, is not this Theomachein? is not this to permit unto flesh and blood, which the spirit of God hath forbidden, but to answer you more particularly: First, usury is against the lawe of nature, because it is against the law of nature that money should engender money, and against the Lawe of God, in which it is said: Si pecuniam mutuo dederis pupillo meo pauperi, non vrgebis eum quasi exactor nec usuris opprimes, 
Exod. 22.  and again mutuum date, nihil ind sperantes, and by our law it is flatly forbidden. 
14. quest 4. ca. 1. cum sequent.& in Clem. 1. de vsur. Authent de Eccles. Tit.   Codicgn. 
So it seemeth by our Law which in this professeth itself to imitate the Canon Law for the Emperor saith of this matter, 
5. The civil law in condemnning usury agreeth with the Canon law  leges non dedignantur imitari sacros Canones, and he commandeth the four general Counsels to be observed, wherein usury is forbidden. 
l. 1. C. de sum. trin.& fid. Catholic.   Nomom. 
But Anglonomoph. I think your Law doth wink at usury if it take but after the rate of x. li. in the hundred.  Anglonomoph. 
It winketh at it as he that shooteth in a Caleeuer at birds, 
6 The common law in this ag eeth with ●oth other laws.  who winketh with one eye and woundeth with the other, so our Law seeth not when the usurer letteth forth his money to interest, but when an information is exhibited against him then it seeth the fact, condemneth the fault, and punisheth the offeder: and though he take but after the rate of 10. li. in the hundred, yet he shall forfeit the full value of the interest, and worthily truly doth the statute note usury with terms of disgrace censuring it to be 'vice, increasing by corrupt shifts, to the importable hurt of the common wealth. 
13. El. ca. 8. usury 8.   Nomomath. 
Ye haue in this point satisfied me now, I will further proceed in questioning, Suppose that a man lend money to another, and the other would repay it in some kind of coin is debased, whether is the lender bound to take it?  Codicgn. 
The change of money may happen two ways, for either it may bee changed in respect of the matter, whereof it is made, as if in stead of silver, brasse-coine be used, or in stead of gold, silver: for the ancient germans, as Tacitus reporteth, had silver in greater price then gold, 
Tacit. de moribus Germonor.  and in Pisana silver money is of more account then gold, because the people of that country do pay many tributes and taxes to the Pope, whose collectors and officers will not take any payment in gold, in Sparta yron-mony was only in use, 
Polyb. lib. 6. Plutarch. in Lych.  or else it may be changed in the value, as if a Floren, which was worth 4. li. to be debased to 3. li. for in the value of money, neither the matter nor form is respected, 
●. A diversity in the civil law when money is tendered at the day of payment, and is after embased, and when it is tendered after.  but the determination of the Prince, wherefore Aristotle said well, that money is not censured by nature but by law,& is of such value, as the law published of it doth determine, 
Aristot. lib. 5 Ethic.  which Galen likewise sheweth, 
Galen lib. 2. de pulls. diff.  in both these cases if the debasement were before the day of payment the debtor may pay the debt in the coin embased, 
Argum: l. vinum,& l. quod te: ff. si cert. pet.  but if it were after the day of payment then the law is otherwise, because he payed it not in due time. 
arg. dictae. l. quod te,& l. vium.   Anglonomoph. 
To that reason our law seemeth likewise to incline. 
7. E 6. 82. Dyer.  
2 To the aforesaid diversity the common law seemeth to agree   Nomom. 
If a man borrow money of one, and procure one to become surety for the repayement, whether is he that borroweth the money discharged of the payment, or else charged as principal?  Codicgn. 
Though the surety in our Lawe bee termed Fideiussor, 
1 That by the bond of the surety the principal debtor is not discharged by the civil law.  because alienam obligatione in suam suscepit fidem, yet the principal debtor remaineth still obliged: 
Hostiens. in sum: de mutu:& commod:& l. 1. C. de Const. pecun.  and by preferrment of Lawe the surety( as he is a surety) is therefore bound, because the principal debtor is bound. 
Ferrar. in form: lib: cont: plur:  
2 That by the common law as well the one as the other may be sued.   Anglonomoph. 
To that the Common Law agreeth, and that an action may be maintained as well against the one as the other. 
44. E. 3. 21. per Mombr̄.    

The ninth Dialogue of the bailement or delivery of goods. and Chattelles  NOmomat. 
It remaineth now by the order of your conference, that you should speak of the baylement and delivery of goods and chattels, in which I would haue you to bee very brief, because I had rather be resolved in other matters belonging to the next title, whereof ye are to treat, wherein I shall stand in need of more instructions: but because some doubts touching the aforesaid title do trouble me, ye shal give me leave to move unto you some two or three questions thereupon: what is that Codicgn. which in the civil law ye do properly call depositum? for I do imagine that the true knowledge thereof will ease my mind of many doubts.  Codicgn. 

1. The definition of depositum by the civil law.  Depositum, is that which is committed to the credit and faithfulness of a man, to keep safely to the use of him that delivereth it, to the end that it may be restored, when he shall call for it, 
l. 1. ff. depos. ubi doct',& in l. quod seruns eod.& dict. l. 1.§. est autem,&§. penult.& l. Lucius eod. l. licet in fin. eod.  and in the one is the property, in the other the trust.  Anglonomoph. 

2. The nature and course of it a● the common law.  To this our Law accordeth, for if a man deliver goods& chattels to one to keep& he will not deliver thē, he that delivered them may haue a writ of Detinue against the other for these goods and chattels, and so if a man deliver goods or money to another in a bag ensealed, 
Fitz. na. br. 138. A.  or not ensealed, 
18. H. 6. 20.  or in a chest, or coffer, to deliver to another and he to whom they are delivered will not deliver them over accordingly, he to whom they should bee delivered, may haue a Writ of Detinue, but if a man deliver money to one being not in a bag or coffer, to redeliver to him, or to deliver over to a stranger, in such case, neither he that delivereth, nor he to whom the money, or goods are to bee delivered, shall haue a Writ of Detinue for the money, but a Writ of account, because a Writ of Detinue ought to be of a thing certain, 
3. A diversity where a writ of account, of Detinue, and of trespass are to be brought concerning things delivered at the common law.  as of money in a bag, or of a horse, or twenty kine, or such things in certain, 
Fitz. na. br. 138. A. 7. H. 4. 13. 13. E. 3. Detin. 53. 6. E. 4. 11. 36. H. 6 9. per Wangef.& Billing. 5. Ma. 152. Dy. 39. E. 3. 30. 46. E. 3. 16. & if the baylie open the bag, in which money is delivered, the party to whom the money belongeth may haue a writ of trespass, or Detinue at his pleasure, 
21. E. 4. 36.  or if he do burn or consume the things delivered unto him, 
33 H. 6. 26. per Litt. 20. H. 6.17.  So where a dead is delivered to one to deliver over vpon a condition to be performed to a stranger, and he delivereth it without mencioning the condition, a Writ of Detinue will lie against the first Baylie, and no other remedy may be had, 
9. H. 6. 37. per Curiam.  and where I deliver goods, and a stranger taketh them out of the possession of the Baylie, I may haue a Writ of Detinue against the stranger, or against my Baylie, 
20. E. 4. 11.  for my Baylie is charable into whose hands soever the goods do come: but if he deliver them over to another, that bayly is not chargeable to me, but only for the possession. 
12. E. 4. 12.   Nomomath. 
Suppose that a man infeoffeth me of certain lands with warranty, who retaineth all the deeds and evidences concerning the lands in his own possession, whether may these deeds after livery made to me of the lands bee said to bee my depositum in his hands as a thing which I haue left in his hands, and whether will a Writ of Detinue lie for them at the common law?  Codicgn. 
They cannot be said to bee deposita in his hands, 
1 That a thing cannot be said to be a depositum at the civil law, except it be delivered to the party.  because a thing cannot be said to bee depositum, except it be delivered to the party, 
l. 1. ff. de pos.& ibi Doct'.  and if these writings, which you speak of, do belong to the feoffor, as I think they do, then they cannot be said to be deposita: for wee haue a rule in our law, that res propriae frustra deponuntur apud dominum cum ex deposito non obligetur, and it is contra bonam fidem that the owner should redeliver his goods( in which he hath a property) to another man. 
l. bona fides ff depos in fi.   Anglonomoph. 

2. That by the common law feoffee of the land is to haue the charters when the feoffment is without warranty: otherwise it is. when it is with warranty.  It is good to bee considered to whom these charters or deeds above mentioned do belong. The authority is very pregnant, that if a man make a feoffment of his land to an other by deed, the feoffee shall haue the charters concerning the land, though the feoffor do not expressly give them to the feoffee. 
18. E. 4. 14. 9. E. 4. 53. 39 E. 3. 22. 7. H. 4. 7. 34. H. 6. 1.  And if a man make a lease for term of yeares, and after confirm the estate of the lessee in fee, and he to whom the confirmation was made dieth, now his heir shall haue as well the deed of the lease for term of yeares, as the deed of confirmation, because that deed maketh the confirmation good, 
9. E. 4. 53. Fitz. na. br. 138. K.  and so where a gift is made to one for life, the remainder to another in tail, if the donor release all his right to the tenant for life, he in the remainder cannot haue a Writ of Detinue for his release after the death of the tenant for term of life: 
9. H. 6. 54.  But in the case which you haue proposed, because the feoffment is with warranty, so that the feoffor is bound to warranty, now the feoffee shall not haue the charters concerning the land, for so the feoffor might fail of the maintenance of his warranty, and so if a man be enfeoffed with warranty and after infeoffeth another with warranty, the heir of the feoffor may haue a Writ of Detinue against a stranger in whose possession are any deeds or charters concerning the land, because he may haue advantage of this warranty, 
Fitz. na. br. ibid. L.  but let the feoffment or gift bee made without warranty, it is clear that the donee or feoffee may claim the charters concerning the inheritance de jure, and therefore if a gift of land be made to A. in tail, the remainder to B. in fee, and after A. dieth without issue, B. shall haue the deed, 
3. H. 7. 15.  so if lands be given to two, and the heires of one of them by dead, now if the tenant for life die he that hath the fee simplo shall haue the Writ of Detinue for the deed, 
Fitz. na. br. 138. F.  for the deed runneth with the land and is of the nature of the inheritance, and therefore a replevin lieth not for such charters, 
4. H. 4. 7. 10.  and it is said by Newton 22. H. 6. that he in the remainder in tail shall not haue a Writ of Detinue against the tenant for term of life, if he haue the dead specifying the remainder, yet he cannot haue a form done in the remainder, nor an Action of Waste without showing the deed. 
22. H. 6. 1. per Newt.   Nomomat. 
Whether ought he to whom the goods be delivered make them good if they be stolen& embeasiled from him or by some other mischance do perish?  Codicgn. 
He is not to be charged if the goods be lost by any casualty, 
1. That the baylie is not to be charge. with the loss of the goods which happeneth merely casualty.  but onely in such case where there is default, deceit, and covin, or apparent negligence in him. 
l. quod Nerua:& saeo: But. in l. in re mandata C. Mandati,& Instit. quib. mod. re. contra oblige.§. penult.   Anglonomoph. 
If a man deliver to me his goods to keep, and I put them amongst mine own,& they be imbesiled, I shal not be charged for the goods, 
29. Ass. pl. 28.  and if a man be bound to bring me a sum of money and he is robbed of it by the way, he shall be by Law excused, 
40. E. 3. 6.  But 9. E. 4. he shall not be excused, unless he undertake to keep it, and to bring it as he will his own goods, and then he may pled this in discharge of account before auditors, but not in bar of account, so that it appeareth by this book, that if he undertake generally to bring the goods, he must bring them at his peril. But 3. H. 7. 
9. E. 4 40.  is that if the Baylie be robbed of the goods, he shal not be further charged, but if the goods bee taken away by a trespasser, whom the Baylie doth know, he shall bee charged over to his Baylor, because he may haue an action against the trespasser. 
3. H. 7. 4.  But 20. E. 4. it is said that if I. S. deliver goods to one to keep,& a stranger taketh them out of his possession, I.S. may haue an action against him or against his Baylie, 
20. E. 4. 11.  but in that case if the goods be stolen from the Baylie, in the indictment of the fellow the words must be bona I.S. in custodia talis. 
7. E. 4. 14. Lamb. Eirenar̄ 494.& 495.    

The tenth Dialogue of the form of ordinary proceeding in matters of Law.  NOmomat. 
It remaineth Codicgn. that ye should now speak of the form and manner of ordinary proceeding in matters of Lawe, which because it dependeth wholly vpon the practise and custom of Courts, in which I haue employed no great travail, nor observance, I must therefore request you to stretch your sinews in this regard, and not onely to argue, but open things unto me, and be not angry with me, if in the handling of these matters I bring ye from the hill, that is your high and intricate points, to the valley or plain, that is to matters more plain and easy, and again from the valley to the hill, when I find in myself strength of understanding to ascend. First I pray you show unto me what is to bee done at the commencement or beginning of a suite or action. 
1 The things which are to be observed of the plaintiff at the beginning of a svit by the civil law.   Codicgn. 
Because in every controversy of law, there must be a plaintiff and a defendant, it is not amiss nor impertinent to mention such things as ought to be observed& regarded of the plaintiff, when he draweth any man into svit: and they are three in number, the one concerning profit, the other necessity, and the third vrbanitie. It is a point of profit or wariness for the plaintiff before he commence svit against any, to be well advised and assured whether himself bee a lawful person to stand in iudgement, and to demand that which he bringeth into question, 
l. 1. C. qui legit. person. standi in iud. hab.  he ought likewise to be sure that he haue a good cause of controversy, or else in some cases he must be adiudged to pay the costs to the defendant: in other some he must bear the loss of the charges of the suite, 
l eum quem temere ff. de judicijs.  likewise he ought to beware, least he draw the defendant before an incompetent judge. 2. It is a point of necessity that the party whom the plaintiff sueth, bee cited, or summoned before: for against the party not summoned, nor heard, nothing can bee determined, 
l. de vnoquoque ff. de re. iud. &c. 1. exit. de cause. poss.& {pro}prietat.  
2 Citation is proved to be of the substance of the proceeding, contrary to the opinio in of some civilians.  Citation( as wee say) is parcel of the Law of nature, 
Clē. pastoralis de re iud.  therefore of necessity the party defendant must be summoned, because in every action the iudgement hath a retrospect to the original, and to the summons( and as wee say in plain terms) to that part of the action which is de in ius vocando: 
Ext. de procurat. C. in nostra in fin.& l. prolatam C. de sent.& interloq. om. iud.  otherwise the iudgment is erroneous, 
justi. de office. iud. in princ.& in§. omnem in authē. delitigios. Gloss. in cap prudentia.§. 1. de office. de leg.  because Citation is of the substance of the proceeding, for that is the beginning of the svit, howsoever some hold opinion that the svit is not begun ante litis contestationem, 
d. authē. de litigios.§. si vero a preside. l. apertissimi. C. de judic.  before the appearance of the party def. and the libel exhibited in Court,& notice taken thereof by the def. by some responsory act, because( say they) post litis contestatione non potest forum declinari, 
ff. de judic. l. 1& 2.& C. de litis ●ontest.  the jurisdiction cannot be avoided after the apparance& the exhibiting of the libel,& any kind of answer applied, but others hold in my opinion more agreeable to the truth, that it is one of the fundamental beginnings of the svit, and one of the essential and formal parts of the iudgement, because the omitting of it doth frustrate the iudgement. 
l. de uno quoque ff. de reiud.& in c. 1. de cause. poss.& {pro}prietat. extra.  3. The other point is a matter of civility, or courtesy, because humanity doth require that before any man do contend in svit, and do prepare and address himself ad experiendum summumius, that he friendly and mildly do admonish him, with whom he is to deal, of his duty, that if by faire means he may be won, the rigor of law may not be exercised. 
l. quid vberius ff. de seruitut. urban. {pre}d.& l. debitores C. de pign.   Anglonomoph. 
These cautels which your law prescribeth to such as enter into svit, 
3. The cautels to be observed at the common law in the commencement of an action.  are not utterly rejected of our law, for as to the two first which concern profit& necessity, our law doth rigorously exact them: as to the other it is not against it, for it doth not forbid, nor hinder any man to bee courteous to another, but it being a science rather politic then mortal, doth more respect the Iustice of causes, then the courteous gestures of men, our law doth urge men to deal well and honestly,& if they do otherwise it doth punish thē, but courtesy is a free, spontaneal& ingenious quality, to which no enforcement may be used, but I will first examine by your patience, how far forth our law regardeth the ability of the person, which is to implead another, and then by course will examine all the partes of your precedent speech, enquiring by our books howe they may sort, and be suitable to our law. First it hath been received of us as a currant rule from all antiquity, 
4. Disablements in the person of the plaintiff at the common law.  that the defendant may plead outlawry in disablement of the plaintiff, but if he do imparle now he cannot pled outlawry to the disablement of his person, but yet he may well plead it in bar of the action, 
32. H. 6. 3● 35. H. 6. 36.  so in a Writ brought by one as son and heir to I.S. after imparlance the tenant cannot plead to the writ that he is bastard, or that he is not heir, but he may very well plead it in bar of the action, 
22. E. 4. 35.  and so outlawry is a good plea in bar of an Action of Debt: for by the outlawry of the plaintiff, the debt if it grow by especialty is vested in the queen, otherwise it is of an action of debt vpon a contract: 
16. E. 4. 4.  for in that case the debtor might wage his lawe against the debtee who is outlawed, and as it seemeth by 10. Henr. 7. the outlawry goeth rather in bar of the Action, then to the Writ, for there it is said, that where a man cannot plead to the Writ, but by showing of a matter in bar, there he may show it and conclude to the writ: for in an action of debt a man may plead outlawry in the plaintiff, and conclude to the person, and yet the matter goeth in bar, and he may plead it also in bar, 
10. H. 7. 11.  and conclude to the action, and after that a vourcher is counterpleaded, and the tenant put to another answer, he may notwithstanding pled that the demandant is outlawed, 
21. E. 4. 64.  but after vourcher the tenant may not pled to the form of the writ, 
5. E. 3. 223.  and 32. Henr. 6. is very plain, that where a man pleadeth that the plaintiff is an alien born, or a villain, or an outlawed person it is left to his choice, whether he will conclude these special matters to the writ or to the action, 
32. H. 6. 27.  and though the defendant haue made an attorney in a replevin, yet he may afterward allege that the plaintiff is his villain, 
29. E. 3. 24.  So 21. Rich. 2. in assize brought by the husband and wife against diverse persons, the tenants said that the wife of the plaintiff was entred into religion in the house of B. and there was a Nun professed,& demanded iudgement if she should be answered, and the assize was adjourned into the common place, and a writ was sent to the Bishop to certify, who certified that shee was professed, wherefore the defendants prayed that the husband and wife might bee barred for ever, and it was held by the whole Court, that forsomuch as the plea did stretch onely to disable the wife of the plaintiff, and if the husband and wife had purchased jointly, that the baron should notwithstanding the disablement haue an assize of the whole, but otherwise it is if the husband and wife bring an assize, and a feoffment or release of the husband or the wife or of some ancestor of one of them bee pleaded in bar, both of them shall bee barred, therefore in this case it was held that the iudgement ought not to bee that the husband should be barred, but by the aduise of the whole Court it was awarded that the husband and the wife nihil capiant per breue suum, said essent in misericordia. 
21. R. 2. Iudgemnt 263.  and in the third year of henry the sixth it was held a good plea to say that the demandant was an alien born in Portugall, which is out of the Kings legiance with conclusion, sil serra respondu. 
3. H. 6. 11:  and therefore master Theloall in his Digest of writtes well observeth, that an exception taken to a writ propter defectum nationis, vel potius defectum subiectionis, vel ligeantiae is peremptory, and that the action cannot bee revived by peace, or league subsequent, and that the King may grant licence to aliens to implead, and likewise that such aliens as come into the realm by the kings licence and safe conduct may use personal Actions by writ, though they bee not made Denizens, and that Denizens lawfully made by the Kings grant, and such Aliens born which are within the express words of the statute of 25. of Edward the third, may use Actions real by original writ, 
Thelo. Digest de briefs li. 1. ca. 6.  And where a man is excommunicated, and he sueth an Action real or personal, the tenant or defendant may plead that the plaintiff is excommunicated, and hereof he ought to show the bishops Letters under his seal, testifying the excommunication, and then he may demand iudgement whether he ought to be answered, 
Litt. lib. 2. ca. 21. sect. 42.  but if the demandant or plaintiff cannot deny this, the Writ shall not abate, but the iudgement shalbe that the tenant or def. shall go quiter without day: because when the demandant or plaintiff hath purchased letters of absolution, and they are shewed forth to the Court, he may haue a resummons or reattachment vpon his original according to the nature of this Writ, 
Litt' ibid.  and whereas you say, that it behoveth the plaintiff to be sure that he haue a good cause of action least he pay the costs, that now by statute is made common Law, for by the statute of 23. H. 
● The statute of 23 H. 8. of giuing damages to the defendant is compared with the rule of the civil Law.  H. 8. it is enacted that if any person or persons, commence or sue in any Court of record, or elsewhere, in any other Court, any action, bill, or plaint of trespass vpon the statute of King richard the second, made in the fifth year of his reign for Entries into lands or tenements where no entry is given by the Law, or any action, bill, or plaint of debt or covenant vpon any especialty made to the plaintiff or plaintiffs, or vpon any contract supposed to be made between the plaintiff or plaintiffs, and any person or persons, or any action, bill, or plaint of detinue of any goods or chattels where the plaintiff or plaintiffs shall suppose that the property belongeth to them or any of them, or any action, bill, or plaint of account, in the which the plaintiff or plaintiffs suppose the defendant or defendants to be their bailiff, or bailiffs, receiver or receivers of their Manor, mease, money or goods to yield account, or any action, bill, or plaint vpon the case, or vpon any statute for any offence or wrong personal, immediately supposed to be done to the plaintiff or plaintiffs,& the plaintiff or plaintiffs in any such kind of action, bill or plaint after appearance of the defendant or defendants be nonsuted, or that any verdict happen to pass by lawful trial against the plaintiff or plaintiffs in any such action, bill, or plaint: that then the defendant or defendants in every such action, bill, or plaint, shall haue iudgement to recover his costs against every such plaintiff or plaintiffs 
23. H. 8. c. 15. Rast. damages 6. . Likewise whereas as you say, that the party plaintiff ought to bee wary, 
6. Suite must not be maintained before an incompetent judge according to the common law  least he cause the defendant to appear before an incompetent judge, that agreeth fully with the common Lawe, for if a man do swear unto me that he will household-stuff me of such land before such a day, if he do not household-stuff me, I may not sue him in the ecclesiastical Court Pro laesione fidei, because the act which is to be done, is a temporal act and ought to be tried by the Common law, and therefore if the party be sued in the ecclesiastical Court for it, he may haue a prohibition 
Fitz. N.B. 43. D. , so if a man devise to one lands or tenements deuiseable, the devisee may not sue for these lands in the ecclesiastical Court, but if he make a devise of goods or chattels real as of an estate for term of yeares, or of a ward, for such he may sue in that Court, 
Fitz. 161. F.  and if a trespass bee done vpon the glebe of a beneficed person, 
7. The several jurisdiction of diverse cou ts i● described.  this must be tried at the Common law 
19. H. 6. 20. , but if the termor of certain land do devise his crop and die, the spiritual court shall hold plea for this crop 
8. H. 3. Prohibit' 19. , but if a man sue in the spiritual court for a rent reserved vpon a lease for tithes or offerings, a prohibition lieth, for this is a lay rent 
44. E. 3. 32. , and a man may sue a prohibition directed to the sheriff, that the sheriff shall not permit, nor suffer the queens lay people and subiects to come to any place at the citation of Bishops ad faciendum aliquas recognitiones vel sacramentum praestandum nisi in causis matrimonialibus& testametarijs 
Firz. N.B. 41. A.  but if a testament bare date at Cane in Normandy, yet it may be proved in England,& the executors may thereupon haue an action 
18. E. 2. Testam. 6. ,& a testament shewed under the seal of the Ordinary is not traversable 
36. H. 6. 31. Park. Tit. Testam. : furthermore, if one which is of the queens household sue another, which is not of her majesties household in the court of Marshalsie, the defendant may pled to the jurisdiction of the court, and if the court will not allow this exception, he may haue a writ of Error, and the iudgement given in the Marshalsie may bee reversed in the Kings Bench 
18. E. 4. 22. 19. E. 4. 2. 4. 7. in Scir. fa. inter Prior. de Merron& Prior. de Bingh. per Littlet. , and if one of the queens household sue another of the same household, and the plaintiff is put out of service depending the plea, the other may show this and abate the Writ, but otherwise it is if the defendant bee put out of service 
Lib. de diuers. des courts fol. 102. b. , and if a man bee impleaded in the common place for lands within the cinque ports, the tenant may show to the Court that the land is within the Cinque ports, and by this plea the Court shall bee outed of jurisdiction, but if the tenant do pled a plea in bar, which is found against him, so that the demandant hath iudgement to recover the land, this iudgement shall bind the tenant for ever 
Lib. de diuers. des courts 107. , and so it is of lands in ancient demesne, if a Writ bee brought for them in the Common place, if the tenant appear and plead in bar and take no exception to the jurisdiction, and the plea is found against him, so that the demandant recovereth, the tenannt shall not reverse this by a Writ of error, because he might haue taken in time, exception to the jurisdiction of the Court, and that should haue been allowed 
Ibidem. , but the lord may reverse this iudgement by a writ of deceit, and make the land ancient demesne as it was before 
Ibid.& 16. E. 2. continual claim 10. 11. H. 4. 86. 7. H. 4. 44. 8. H. 4. 14. 17. E. 3. 41. 26. E. 3. 33. : now I come to the citation or summons of the party defendant, 
8. Th●t the summons of the pa●ty defendants is necessar●●y ●xacted by the common law.  which you haue proved to bee necessary by the civil lawe, and I will likewise prove that it is by the Common Lawe necessary exacted: In a writ of trespass the sheriff returned Non est inventus, wherefore a Capias issued that the defendant might bee taken, who afterward came into the Court, and said that he was sufficient, and might haue been summoned, and prayed a writ to make the sheriff to come to answer to the King, and to the party for his false return, and he had it 
31. E. 3. process 5●. , and in an attachment vpon a prohibition, the sheriff returned Non est inventus, the plaintiff prayed a Capias to another sheriff in another county, but the Clerkes said that he ought not to haue any other process then an attachment in the other county, because it may bee that he hath assets in the other county 
13. E. 3. process 34. ,( by which he may bee summoned) and so 11. H. 4. it is said that in an action of debt or trespass, a Capias will not lie against an earl, or any of like estate, because it is to bee intended that they haue assets whereby they may bee summoned, and brought to their answer 
11. H. 4. 15. per halls. , and in a writ against P. and T. and A. the wife of T. by diverse praecipes: in the summons A. was omitted, wherefore the writ abated 
2. E. 3. 39. 8. E. 3. 44. 10. E. 3. 532. 27. H. 6. 6. , likewise in a writ of dower by several praecipes, the name of one of the tenants was omitted in the clause vnde queritur and in the summons, whereupon the writ was abated 
12. E. 3. Brief 671. , furthermore if a man recover in a writ of Waste by the default of the defendant, where he was not summoned, 
9 That by the default of lawful summons the ●roceeding of the plain●●e is frustrated by the common law.  he may haue a writ of deceit 
19 E. 3. deceit 3. 20. E. 3. deceit 5. 29. E. 3. 54. 48. E. 3. 19. 19. E. 2. deceit. 56 17. E. 3. 58. Fitz. N. B. 98. b. 105. a. ,& in this writ of deceit( if there were two summoners returned vpon the writ, in which the summons failed) if the sheriff do return one of the summoners dead, yet the other summoner shall be examined: and if it be found that he did not summon the party, he shall be restored to his land 
8. E. 3. deceit. 7. 1. E 2. deceit 48. , but if the summons bee returned to be made by four men, whereas in truth they did not execute the summons of the writ, as long as two of them live, the tenant who lost in the writ may haue a writ of deceit 
Fitz. N. B. 98. D. , but if three of them die, a writ of deceit may not be brought 
35. H. 6. 46. , but an action vpon the case 
1. H. 6. 1. ,& in a Praecipe quod reddat against the husband and the wife, if at the grand scape the husband appear in person, and the wife appea●eth by attorney, who hath a warrant of attorney which is not sufficient, and therefore iudgement is given vpon the wifes default against the husband and wife, yet they may haue a writ of deceit, if they were not summoned 
18. E. 2. deceit 54.& 55. Fitz. N. B. 89. B , and how necessary a summons is, may appear very plainly by the book of 7. H. 6. where in a Formed on they were at issue, and the tenant at the Nisi prius made default,& the demandant shewed how he was in prison in the ward of the Marshall, and prayed that they would sand for him to appear, otherwise he would save his default afterward by imprisonment, wherefore the court sent for him and he came. 
7. H. 6. 38.   Nomom. 
Ye haue spent a great deal of time in treating of the commencement or beginning of a svit or action: yet I desire to haue some further knowledge of the nature of a citation or summons, therfore resolve me; when a man is summoned to appear within 2. or 3. daies after such a return, whether shal the 2. or 3. day be accounted in the citation, so that then he that is cited may well enough appear, when as in the one case one day is past, so that he doth not appear within the 2. daies appearing first in the morning of the 2. day: in the other case 2. daies be past, so that he appearing the 3. day doth not appear within the three daies so that if he will save his default, me thinketh he should appear the first day of al.  Codicgn. 

1. That by the civil law if a man be bound to appear within ten daies, the tenth day is taken inclusive.  This question is easily resolved, for if he appear within the two daies or three daies, it is clearly sufficient because the last day that is put in the citation, doth imply that he may defer his appearance unto the last day, 
ff. de verb. oblige. l. qui ante Calendas& l. eum qui ita ff. eod.  and though an appeal be to bee brought within ten daies after the iudgement, yet the last day is taken inclusive, and not exclusive: 
ff. de success. edict. l. 1.§. decimus.  and if time be given to one either by the party or by Lawe, that he may pay so much money within, or do or propound any thing de jure suo within 10. daies. or from hence until 10. daies, he may pay, do or propound the 10. day without any prejudice or surcease of time. 
Instit. de verb. oblige.§. si in diem.   Anglonomo. 
If a man bee bound to pay money infesto sanctae Trinitatis, if he tender the money in the vigil of the Feast, it is not good, nor in the octaves, but the tender must bee made the very day of the Feast, but if the payment had been limited on this side the Feast, or before the Feast, then it may well be made in the vigil of the Feast 
21. E. 4. 52. , and these words ab octabis sanctae Trinitatis must bee intended a 4. die octabis Trinitatis: and thereupon M. brook noteth, 
2 That the first day and the fourth day of appearance are all one at the Common law.  that to this intent the first day and the fourth day, and all the daies mean are but one day in law 
21. E. 4. 43. Br. Iour.& jours en court. 57. , and therfore if after the day of the return of the writ of Capias,& before the fourth day which is full term, the sheriff doth arrest a man, this arrest is not justifiable, because the 1. day& the fourth day be alone day. 
33. H. 6. 42.   Nomom. 
I would not haue you to insist longer vpon this matter, but now show unto me how causes are opened, declared& disclosed in your Courts, and how faults and wrongs are manifested to the Iudges.  Anglonomoph. 
Al wrongs& offences are either private or public, 
1 A diversity of opening& prosecuting of private and public offences at the Common law.  private offences which are done by one man to the hurt of an other, are made known to the Court,& remedied by original writ, bill or plaint: public offences which are committed by the party against the queen and commonweal, are opened& punished by way of inditement and information, which is put in practise by common informers.  Nomom. 

2 Exception is taken to informations used by common informers.  The manner of such informing seemeth to me to be a very hard course of Iustice: for by that mean lewd persons are animated to terrify& impeach poor simplo men, and to bring them into danger? for what mischief will they not do, when a reward is proposed unto them?  Codicgn. 
It is true& our law doth generally disallow such proceeding,& therfore the name of a delator or informer is in our law accounted dishonest 
L. 3. C. de Iniur. : and therfore it saith expressly. 
3 Many objections are made out of the civil law against common informers.  Delatores inimici generis humani, maximum humanae vitae malum,& execranda pernities 
De Delatoribus C. lib. 10.& lib. 10. C. Theod. de petition.& ultro dat.& delat. . Plutarch calleth them, Impios,& dijs inuisos homines 
Plutarch. in Dion. . Tacitus calleth them Genus hominum publico exitio repertum,& paenis nunquam satis coercitum 
Tacit. lib. 4. Annali.& li. 2.& 4 histor. . The roman Senate after the death of Nero demanded instantly, that such kind of men might bee punished more maiorum u, and these words ( more maiorum) a● interpnted by Alciat and Faber, to be the most extreme punishment that could be devised 
Alciat lib. 4. Parerg. c. 21. Faber lib. 2. semestr. c. 7. . In like fault& punishable after the same maner doth our lawe adjudge suborners to be, which do minister occasion to the informer,& do serve his turn in the prosecuting of his information 
L. 2.§. 3.& 4. l. 22. 23. 24. de jur. fisci. ff. Harmenop. li. 2. Tit. 15.& l. r.§. pen. Ad S. C. Turp. ff. . Against such suborners and informers sharp& severe punishments were adiudged& established by Titus 
Sueton. c. 8. , Pertinax 
Herodia. lib. 2. , severus 
Herodia. ibi. , Macrinus 
Herodi. li. 5. , Gordianus 
Herod. li. 7. , Aurelianus 
Vopisc. , Traianus 
Plin in Panegyr.  these men were in ancient time banished unto the Gaetulian sands, 
4 Punishents ordained by diverse Emperours against common informers.  which are in the remote partes of afric 
marshal. lib. 1. epigram. , and this sort of men did never flourish in the roman common weal but under tyrants, as namely Nero, Tiberius, Commodus, and the like, and therfore these exclamations were heard when they were dead, Delatores ad leonem, Delatoribus metum, Delatores de senatu, Delatoribus fustem. 
Lamprid. in commod.   Anglonomo. 
Thus you deter informers from their just accusations by minatory speeches, uttered by malcontented persons, but as archers when they aim at a mark do often shoot beside it, so you disputing of this question, 
5. Codicgnostes is charged by Anglonomophylax to mistake the point in question.  haue spoken clean beside the purpose, for the question is not whether some delators or informers be dishonest men,& intolerable in a common weal: for none will doubt of that: but whether no informers ought to be suffered in a good common weal: and these censurers of informers which you haue brought out of histories and out of the civil law do onely respect, 
6. He is likewise charged to mistake the civil law in this point.  and concern such lewd persons, which by slanderous detraction do traduce and falsely accuse men of honest life and good report, throught the vile and corrupt desire of unjust lucre, whose informations Tacitus calleth Interpretationes, interpretations, that is a wresting to an ill sense of that which was well meant, or a misconstruing of that which was done without evil intent or conveyance 
Tacit. lib. 3. annali. : and Suetonius termeth them Calumnias slanderous accusations 
Sueton. Domiti. c. 9. , such men did not openly prove, but secretly impeach the good name of others, as Cuiaci well observeth 
Cuiaci. ad Paulum. , but none of your former speeches do touch these, which prove directly and fully that which they allege in their information, neither doth your law( for I look sometime into it) punish such 
L. 8. 10. 12. C. Th. de pet& delat. l. 1. ad S.C. Turp. ff. , but if they do not prove their surmises, they are worthily punished:& by the statut of 18. 
7 The statut of 18. of our sovereign Lady the queen touching common informers is compared with the edicts of Emperours.  Eliz. it is well provided, that if any such informer shal willingly delay his svit or shall discontinue, or be nonsuit in the same, or shall haue the trial or matter pass against him therein by verdict, or iudgement of law, that thē in every such case the same informer shal yield, satisfy, and pay unto the said defendant his costs, charges& damages to be assigned by the court in which the same svit shal be attempted 
18. Eliz. c. 5. Rast. Inform. 1. :& whereas you say that your lawe doth generally disallow such proceeding, by your favour it is not so, for he which by office is appointed and charged to inform, or by some other obligation of Lawe is bound to inform,& he which doth it directly for the profit of the common weal is allowed by your law to execute that course of proceeding 
L. 1. l. 2.& l. 6. Ad S.C. Turpil. ff. , furthermore in that you say, 
Codiegnostes his surmise that informations were not used in the best times of the romans is answered and confuted.  that informers did never flourish in the roman common weal, but under ancients, it is not true, for in the times betwixt the 2. and last carthaginian war the romans did most excel in virtue,& were most renowned for good example& desert as witnesseth sallust a great judge in matters of state, and in the manners of men, whose testimony S. Augustine neither doth affirm nor deny but qualifieth with this censure, Toto illo interuallo duorum bellorum punicorum tolerabilior infaelicitas fuit 
S. Augustin. lib. 3. de civitate dei. c. 21. :& Florus writeth agreeably to sallust: Hactenus populus Romanus pulcher, egregius, pus, sanctus, atque magnificus 
Flor histor. lib. 2.19.  I say in these happy times, or if you will in these last unhappy times of the roman common weal, certain informers were earnestly busied in courts which were thē termed( as appeareth by Plautus 
Plaut. in pierce. , who lived in those times) quadruplatores, because they had the 4. part of the forfeiture of the defendant 
Festus.  if their information were true,& these were accounted al one,& in the same degree with delatores 
Vopisc. in Aureli. . This may suffice to infringe that which you haue delivered, Codicgn. against informers. Now give me I pray you a little leave to prove that informers are not onely tolerable in a well governed common weal, 
9 It is shewed likewise that informations are expedient for the administrati●● of Iustice.  but even expedient& necessary instruments for the good administration of Iustice: but always I require in thē honesty, faithfulness,& conscience, taking this to bee an infallible rule, that he can never be a good informer, who is not a good man. These qualities being in thē,& truth being the ground of their proceeding, I see no reason but that their pains should be recompensed& rewarded, sometime with the 4. part, sometime the third, sometime the moiety of the forfeiture, which the defendant by diverse penal statutes is to forfeit& incur: for by reward the spirits of a man are stirred up& quickened: without it they linger, languish,& consume away,& why is reward due unto such men? The causes& reasons be many, without information there will be hardly any punishment inflicted vpon many offenders,& sithence nothing is more acceptable to God, or beneficial to the common weal, then that offenders should receive their proper& condign punishment, al lawful means must be assayed to attain to this effect, and what doth restrain men more from committing offences then a continual fear of the informers eye to be cast vpon them, or his ears to be open for the hearkening out of their offences: wherefore as the Huntsman doth bestow vpon his dogs some part of these beasts which he taketh& killeth in hunting, that by such enticements they may bee afterward drawn to pursue their pray fiercely& eagerly, so it behoveth a lawmaker diligently to hunt out the domestical lions& wolfes, and to allow some reward to the hounds of the Common weal, which informers are 
Plutar. in Lucul. : Conanus the king of Scots did make a law, that in every great Church there should be a chest having some holes in the top, into which the informers might put in at pleasure their several bills of information, wherein the fault committed, the place, the time, the witnesses and the parties accused were contained: then the Magistrate openeth the chest, bringeth the matter into question, and the guilty person being condemned the half part of the goods forfeited goeth to the informer: which Law is now put in practise, by them of milan 
Bodin. li. 4. de repub. c. 6. .  Nomomath. 
You haue spoken enough of this matter Anglonomoph. I desire greatly to know, whether if a man do allege some impediment happened by the act of God, whereby he could not appear, this be a sufficient excuse of his default in Law.  Codicgn. 
process of contempt which we call literas contumaciales, 
Defaults are dispensed with all by the civil and Common law when they happen by the act of God.  are never addressed against such as be hindered by inevitable accident, as namely when the place where the court is held is besieged of enemies, or when the plague is hot in that place: for citatus ad locum non tutum non arctatur comparere 
De appel. extra. C. ex parte.& in Clem. pastoralis,& ibi glos. sup. verbo Notorium. de re judicat. ,& so it is if through great snow, or inundation of water the ways& passages be stopped and shut up, in these and the like cases, the Lawe doth dispense with defaults, and therefore the matter of delays is for the most part committed arbitrio judicis 
L. 2. ff. de re iudicata. , who may take certain notice of these things.  Anglonomo. 
It is a received opinion with us, that infirmity or the fall of a man from his horse whilst he was in his journey, though the party be by the fall in danger of death, is no sufficient cause to save a default, but the swelling and overflowing of waters is a good and sufficient cause,& so is an imprisonment 
38. H. 6. 12. , for though the imprisonment do originally happen by the act of the party, yet it is an impediment of apparance against his will,& it is a restraint imposed by act of Lawe 
3. H. 6. 46. : so that the party is as it were by Lawe made corpus immobile,& therfore his default must needs be excused 4. H. 5. sickness was held a good excuse to avoid an outlawry 
4. H. 5. challenge 153. Br. saver. de def. 45. , but M. Br. doubteth of that, because sickness may be feigned, yet vpon the book of 4. H. 4. cited in the book called the abridgement of assizes, because there malady was pleaded against outlawry& was admitted 
Abridgem. dassise. 48. , he beginneth to wayuer in opinion 
Br. saver de def. 48. ,& therefore I may with more colour leave it doubtful.  Nomomath. 
Which is the most common action in your Law Codicgnostes?  Codicgnost. 

1. The most common action in the civil law is actio iniu●iarum, which is either civilis or praetoria.  The action which is called actio iniuriarum, which is either civilis, or praetoria: civilis, if a man do assault another, or do beat him, or do enter into his house 
ff. de iniur. l. lex Cornelia. : in all other cases it is praetoria. But both kindes agree in this, that the fault and injury is punished 
Instit. de iniur.§ penult.& ff. de iniur. l. iniuriarum. . And in the pursuing of it a man may deal either civilly or criminally, but one of the ways being chosen, the other may not be entred into 
L. quod senatus.& l. praetor.§. 1. ff. de Iniurijs. , and if the party bring ciuilem actionem iniuriarum, he shall recover the damages 
ff. Iniur. eod. l. Idem apud§. si quis servo. : but if he bring praetoriam, he shall effect nothing thereby but vindictam, the punishment of the party which hath offended.  Anglonomoph. 
This your speech tendeth to no other purpose as it seemeth, then to insinuate that such wrongs may be pursued by action or inditement, 
2. Actions and enditements at the Common law are compared with civil& praetorian actions.  wherein our Law doth not any whit disagree. For if four men enter into land, and one of them entereth by force, this is force in them all, and they may be impleaded by action or impeached by inditement 
2. E. 3. 12. li. ass. 33. Crompt. I.P. 61. : but if a man enter by force where his entry is lawful( so that there is no fault in the matter of his title, but in the manner of his entry onely) he shall not be punished by way of action, but by way of inditement 
15. H. 7. 17. Fitzh. l. P. fol. 117. Br. Forcib. entre 11. 9. H. 6. 19. Fitzh. N. B. 248. , and so if the disseisor hold possession by force during the space of three yeeres, if the disseisie bring an action vpon the Statute of 8. H. 6. he shal be barred by this matter pleaded, but otherwise it is in an inditement vpon that statute, which is the queens svit, and vpon such inditement the party shall haue restitution, though he may not haue an action 
14. H. 7. 29. per Fineux, read,& Tremaile. , and if the disseisie out the disseisor with force, the disseisor shall not haue an action, but yet the disseisie may be indicted vpon the aforesaid statute, and the disseisor shall thereby be restored 
15. H 7. 17. Fitz. N.B. 248. .  Nomomath. 
I would haue you to proceed Codicgnostes in describing unto me the form of your action which you call actionem iniuriarum, that it may bee more certain and manifest unto me.  Codicgnost. 
I haue it here written in a book, which I haue ready at hand.  Nomomath. 
I pray you then red it as distinctly as you can: for I mean diligently to observe the points and parcels of it.  Codicgn. 
The libel standeth thus in the book: 
1. The libel of an action of injuries is fully set down according to the form of the civil law.  Coram vobis clarissimo, magno,& potenti viro, &c. dicit ponit, asserit& quatenus &c. justificare intendit Titius, quod ipso existent die 19. mensis Augusti proxime praeteriti hora tertia vel circa in arenis Nemansensibus ante ecclesiam S. Petri& in Comitiua plurium nobilium personarum pacifice conseruando, neminique iniuriam inferendo, superuenit ibidem dictus Sempronius reus, qui animo iniurioso ipsum actorem prouocauit,& incitauit per rixosas& iniuriosas allocutiones,& quanquam dictus actor ipsum reum dulcibus& placabilibus verbis refraenare& mitigare niteretur: dictus tamen reus semper magis atque magis insistebat,& iniurias prorumpebat,& in tantum quod in ipsum actorem talia verba, seu in effectu similia, bonorum nominis& famae ipsius actoris denigratoria,& infamatoria iniuriose protulit, dicens: Thou naughty thief, thou dost nothing but rob, & quia dictus actor, talia sibi imponendo dixit, quod mentiebat ur dictus reus, non contentus de verbalibus iniurijs praefatis, ad reales,& facti injurias processit,& in personam ipsius actoris irruit,& cum pugno pluribus ictibus ipsum actorem in faciem percussit, liuores,& concussiones fecit,& alias iniurias plurimas intulit, quas quidem iniurias dictus actor mox illico& incontinenti ad animum reuocauit,& iterum reuocat, nolens tales& tam atroces iniurias sibi illatas fuisse pro summa mill librarum coron: quinimmo suadet tantum perdidisse, quam dictas iniurias sustinuisse, vel passus fuisse:& ad quam quidem summam dictas iniurias existimat, judiciali tamen vestra semper taxatione salua. Quare ex his& aliis ex processu resultantibus agit dictus actor contra dictum reum,& petit per vos vestramque definitiuam sententiam pro svorum nominis& famae redintegratione, dictum reum ad publice dissonandum, profitendum,& declarandum, dicta verba diffamatoria& iniuriosa fuisse per eum inconsulto& contra veritatem dicta& prolata,& pro satisfactione iniuriarum dictarum, ad dandum& soluendum eidem actori summam praedictam mill librarum coron: judiciali tamen vestra vt saepe dictum est taxatione salua, vna cum omnibus expenses factis& fiendis: de quib. dictus actor per expressum protestatur condemnari, condemnatumque cogiet compelli vijs juris, et remedijs optimis: et alias petit in omnibus ius,& justitiam sibi fieri& administrari, vestrum benignum, quod, quale,& quantum decet, officium humiliter etiam, loco actionis, si opus fuerit, implorando.  Nomomath. 
This is a very long and circumstantial libel, and to my understanding, many exceptions may be taken to it, which you shall give me leave for argument sake, and for my more understanding, in order to pursue. First when you say in declaring the words, 
2. Exception is taken to the form of the libel for uncertainty.  which are the original occasion of this action, that he spoken talia verba seu in effectu similia, me thinks that should not be a good form, for your libel being like to a declaration at the Common Law, should be certain, and without ambiguous or equivocal terms: but of this matter I require the censure of Anglonomophylax.  Anglonomoph. 
Your exception is good, 
3. The exception is approved by the common law.  and maintenable by our Law: for in an action vpon the case brought for calling the plaintiff false Iustice of Peace, vel his similia, these words his similia were ordered by the Court to be expunged or blotted out, by reason of the uncertainty 
4. E. 6. Br. Action sur le case. 112. .  Nomomath. 
Your libel likewise displeaseth me in another matter, because if I conceive aright, 
4. Exception is likewise taken to the libel for mingling things of several and diuers natures in it.  you lay and allege in your libel as the ground of your action things far distant in nature, which it seemeth to me might very well bear two several actions: for when as you say, that the defendant uttered these words( thou naughty thief, &c.) me thinks, that of itself should bear action: and when you say further, that ( in personam ipsius actoris irruit,& cum pugno pluribus ictibus ipsum actorem in faciem percussit, liuores& concussiones fecit) I think( under favour) that these words of themselves require a several and distinct action, and not such an action as lieth for utterance of slanderous words.  Anglonomoph. 

5. This exception likewise is main●ained by common law.  Your opinion is good& sound in reason, and as for several diseases there be diuers medicines, so for several wrongs( I mean such as are different in nature) there should be several Actions, lest the offering of these things jointly to the understanding, which are different in substance, there arise a great confusion and disproportionable Chaos: Wherefore by our Law, if things of sundry natures be mingled in one action, and the action is good for the one and not for the other, in such case the writ shall abate as to that for which it was misconceived: for example, in a writ of trespass for breaking his close, and taking away certain lambs, whereas the lambs were supposed to be tithe, and the close to be the Churchyard parcel of the Vicarage, brought by the person against the Vicar, it was held that the Court should be outed of jurisdiction as to the lambs, and the defendant should answer to the residue 
13. R. 2. Iurisdict. 19. , and so in an action of trespass brought against the Lord for breaking his close, and taking his horse vi& armis, it was ruled that the writ should abate for taking the horse, but not as to the breaking of the close: 
48. E. 3. 6.  For the Lord cannot justify the hreaking of his tenants close, 
20. E. 4. 2. 7. R. 2. brief 6; 2. 8. H. 4. 16. 8. E. 4. 15. 10. E. 4. 7.  So in an action of trespass for entering into a Warren brought by the tenant against the Lord of the soil, and for chasing there,& taking of conies the writ shall abate as to the entre into the warren vi& armis, and shal stand good for the remnant 
3. H. 6 13. ,& if it appear by the writ or the declaration that the action will not lye for some things mentioned in the writ, yet the writ may be in force for the remnant, as in a writ of Wast, if a man assign parcel of the wast in a thing which cannot properly bee said to bee wast, the writ notwithstanding shal not abate for the whole, and so a writ of Dower shall not abate for the whole, though the plaintiff do demand Dower of something, whereof she is not endowable, 
9. H. 6. 10. 46 10. H. 6. 5.  So in a writ of account brought against one as Bailie, if the defendant plead to parcel that he was lessee for yeares, and not Bailie, this shall abate the writ only for that parcel 
18. E. 3. 16. , and 8. E. 4. in a writ of Entre brought vpon the statute of 5. of King Richard the second for entering into a Mannor and into an advowson, because the action will not lye for the advowson, it was held by Lakin, that the writ should abate for parcel, 
8. E. 4. 3.  likewise in an action of trespass brought by the husband& wife for a battery done to thē both, after verdict found that both of them were beaten, the writ abated as to the battery of the husband,& as to the battery of the wife they recovered their damages, 
9. E. 4. 54. & it is said 11. E. 3. that a man may not allege in a writ of Eiectment de gard, quod blada sua apud B. nuper crescentia messuit,& blada& alia bona &c. cepit, because proclamation lieth for the one, but not for the other, 
11. E. 3. 471.  but a man may haue a writ of Detinue of Charters and of Chattels jointly, 
44. E. 3. 41. brief 583.  because there one thing is the ground of the action, namely the deteiner, and so a man may haue a writ of debt, where parcel of the debt is due by obligation, and parcel by contract, because there the debt is the onely occasion of svit, 
41. E. 3. Damag. 75. 1. H. 5. 4. & so in things of the like nature one writ may comprehend many wrongs, and therfore an action vpon the case was maintained for the hindering of the plaintiff to hold his Leete, for the disturbance of his seruants and tenants in the gathering of his tithe, and for threatening made, so that the people &c. durst not come to a certain chapel to do their devotion, and to present their offerings, and for the taking of his seruants and chattels, but in Adamses case it was ruled, that whereas an action vpon the case was brought for speaking these words( you haue made a false record, I will make you answer where you dare not show your face, and you haue sought my death) the defendant as to the falsifying of the record justified, because he did make a misentrie once into a roll in a Court where he was Steward, and as to the rest he pleaded non Culpable, and he was found guilty of the whole, and damages were assessed to twenty pounds, and it was moved for stay of Iudgement, that some of the words would not bear action, as namely to say( that he sought his death) because that may bee by due means in Law: nor the other words( that he would make him answer where he durst not show his face) wherefore because no action will lye for part of the matter alleged, the assessment of the damages for the whole is not good, and therefore iudgement ought not to be given: to which it was answered that when words are spoken to the disgrace of a man, they cannot be otherwise understood then in malam partem, and therefore to say to one that he hath been laid of the pocks, is to be intended of the French pocks, and though action will not lye for some of the words which were uttered, yet it must be intended that damages were assessed for these words which are of effect to bear action: and this case hath been adiudged that one called another very villain and strong thief, the defendant pleaded non culpable, and he was found guilty to the damages of xl. li. though action do not lye for the words very villain, yet iudgement was given that the plaintiff should recover the entire damages: and so was iudgement given in the principal case 
25. Elizab. Adamses case. .  Nomomat. 
Well no more of this: 
6. Another exception is taken for superfluous alleging of the day and hour of the trespass done.  give me leave further to object; what need you say in your libel die decimo nono Augusti proxime praeteriti? for it is not material when a wrong is done, but me thinks it should suffice to allege that it was done, and therefore much less need you haue said hora tertia vel circa: again, me thinks your libel is too prolix in setting down the words and circumstances of the injury: and likewise you haue used too many words in describing the assault and battery, which might haue been briefly expressed by these words insultum in eum fecit& eum verberauit, neither do I see the use of these words pacifice conseruando, 
8 Exeption is taken for saying nemini in iurtam inferendo.  neminique iniuriam inferendo: For what if Titius the plaintiff had been fighting, with Seius a stranger, is it therefore lawful for Sempronius the defendant in this case to assault and beat Titius? and what need( you say in your libel) animo iniurioso: 
9 Exceptio is likewise taken for using these words animo iniurioso being taken for a surplusage.  for no wrong can bee done without an injurious meaning, and the secret meaning must needs appear by the open description of the wrong.  Codicgn. 
give me leave to satisfy you in all these particular objections, and to tender a reason of the allegations in the libel. 
10 Codicgn. answereth the exceptions.  The very day wherein the wrong was done( to beegin with your first objection) is necessary to bee set down, that the defendant may haue certain notice of the wrong: 
§. atrox. Institut. de iniur.  and that it may appear to the Court, that the injury was committed within the year &c. for a verbal injury is ended and ceaseth within the year &c. 
l. non solum.§. 1. ff. de iniur.  and whereas you disliked the multitude of words in describing the wrong, surely the wrong cannot better bee described then by fullness of terms, which are aptte and significant to aggravate the injury, 
l. praetor§. fin.& l. vulneneris& l. si est questionis,& l. said si vnus.§. quidam. ff. de iniur.  and whereas you find fault, because it is alleged in the libel, that the plaintiff did behave himself peaceably nemini iniuriam inferendo: they are to very good purpose, for if the plaintiff had been a quarrelous, or contentious person,& had given some occasion of strife, the wrong might with more reason bee imputed to him, then the defendant, 
glow. in l. ob. haec verba ff. de his qui no. inf.& in l. 1.§. cum arietes ff. si quadrup. paup. fec.  and he cannot he said to haue done a wrong, who incontinently for his safeguard after the same maner, whereby he is assaulted doth defend himself, for when a man is assaulted by weapons, he may resist with weapons, 
l. vt vim. ff de inst.& jure l. si quis percussor. C. ad leg. Cor. de sicar.  but if he do exceed measure in repealing injury, as if being vexed with words he resist with weapons, and by such resistance do beate or wound the party, he that is so grieved may haue an action of injury against him, 
l. sententiam§. qui cum aliter. ff. ad l. Aquil. & recover damages: 
l. item apud La beonē.§. fi quis servo ff. de iniur.  and to prescribe some temper& moderation in the resisting of verbal& actual injuries, I remember a verse not altogether unpleasant: 
Res dare pro rebus, pro verbis verba solemus,  
Pro bufis bufas, pro trufis reddere trufas:  
Things must be recompensed with things. buffets with blows:  
And words with words, and taunts with mocks, and mows.  And to conclude, you seem not( with your favour bee it spoken) justly to reprove these words animo iniurioso, for they are expressed for difference sake, because if a man in iestingwise should strike an other or use broad boward against him, this would not bear an action, because it was not done animoni iuriandi, said iocandi: 
l. illud peraeque. ff. de iniur.& l. fi non conuicij C. c●d  thus I think you are sufficiently quieted in opinion as to the doubts which you proposed.  Nomomat. 
Nay verily I rest as yet doubtful, and for the fuller clearing of my mind, I would haue Anglonomoph. to speak somewhat of these things out of the common Law, which in matters of declaration and pleading is very curious and exquisite.  Anglonomoph. 

11 Anglo. particularly examineth& discusseth the exceptions.  Truth and error are both equally beholding unto you, for in some things by the censure of our Lawe one of you hath the vpper hand, in other some the other: for proof hereof I will by your patience particularly handle every of the foresaid objections, which hath in it any colour of truth, as to the day of the month wherein the wrong is supposed to be done, I do not with Codicgn. think that in this case the very day necessary ought to haue been mentioned, because it is not traversable nor material to make any issue, but it is sufficient( for observing formality) to set down any day that is past.  Codicgn. 
But with us it is material,& if the day be not truly set down, the defendant may take advantage of it.  Anglonomo. 
With us it is not so, for as Newton saith 20. H. 6. the day in an action of trespass and replevin are not traversable, for if the defendant justify at an other day after, he ought to say without that he took them before, 
20. H. 6. 40. per New. & so 19. H. 6. in a trespass of battery the def. said that the plaintiff did assault him at another time, then he hath declared,& that the hurt which was done unto him came of his own wrong, sans ceo that he was Cul{pre} before or after,& this ple he was enforced to pled by the court, 
19. H. 6. 47.  yet in some case the day and time for avoiding uncertainty, and that the jury may more easily find out the truth is issuable,& therefore in an action of trespass supposing a battery, the defendant said, that the same day, wherein the trespass was supposed, the plaintiff and the defendant by common accord did play together at cudgels, and the hurt which he did unto him was by that play, without that, that he hurt him in any other maner, iudgment si action: To which the plaintiff replied, that the same day when they were departed, the defendant came unto him and assaulted him, and beat him of his own wrong, and the defendant reioyned that all the day and at every time of the day by their common accord they played together, without that that he beate him in other manner, 
12. R. 2. Barr̄ 244.  And so in a replevin of his beasts wrongfully taken, the first day of August the defendant avowed, because the plaintiff held the land &c. of him by homage and fealty and suite at his Court at such a place, and because he was summoned to bee at his court the fifth day of the said month and year, and did not come he was amerced, and for the said amerciament he took the beasts the twentieth day of August, without that, that he took them the first day of August, and it was said by Markeham that this was no plea: for if you took thē at an other day before the presentment it is wrongful, wherefore you ought to say without that that you took the beasts before the twentieth day: but issue was in this case taken, without that he took them the first day of August, 
20. H. 6. 40.  whereupon Master Fitzherbert noteth, that the day in a writ of trespass or replevin is not traversable, but where the special matter doth require it, 
Fitz. Repl. 7.  and this he seemeth to ground vpon 2. H. 4. likewise in an action of trespass for the taking of goods the 8. day of april the def. said that the plaintiff was possessed of them as his proper goods and chattels, and sold them to such a one who left them in the custody of the plaintiff, and after he sold them to the defendant, wherefore he took them at the time supposed, to which the plaintiff replied, that he was possessed of them until the defend. took them the 8. day of April as before hath been alleged, sans ceo that the other sold them to the defendant before that day, and hereupon they were at issue. 
2. E. 4. 16.  b  Nomomat. 
Well let this matter pass, what say you to the multitude of words used in the description of the wrong? is that tolerable in your Law?  Anglonomoph. 

12 Anglo. Excuseth and defende●h the abund●nce of words in declarations and libels.  Surely it is convenient that the quality of every thing should be apparanted by terms of efficacy, and it is better to haue a declaration too copious then carion-leane, neither is any thing more plausible to a good understanding, then that words be ponderous& emphatical, where the matter seemeth to bleed, wherefore Virgil in describing the lofty place of the lusty and courageous horses, maketh his verse after a sort to gallop,& doth in lively terms as it were present it to the eye, Quadrupedante putrem cursu quatit vngula campum. And Persius decently maketh his verse to rise& swell with the matter.  Torua Mimalloneis inflarunt cornua bombis. 
But not to digress from our purpose, in an appeal of mayhem, the wrong must bee in this form, or the like set down. joh. Nan propria persona sua hic instanter appellat W.G. de eo, qd cum idem querens tali die& anno fuit in place dei et dominae Reginae nunc apud talem villam in tali comitatu circa horam sextam &c. ibi venit predictus W. vi& armis viz. baculis vt felo, insidiando,& ex insultu premeditato adtunc& ibid' in dict'I. insultum fecit& adtunc& ibid' cum quodam baculo precij &c. quem praedictus W. adtunc& ibid' in manibus suis tenuit praedictum querentem supper brachium dextrum felonice tunc percussit. per qd venae& nerui bracij sui praedicti restricti fuerunt ac sicci mortificati deuenerunt &c. 
Lib. de diuersit des Courts 115.  Here you haue the Mayhem described from the beginning to the end in full terms: and yet every of them, or at least almost all, so necessary, that if you take away one of these flowers ye mar the whole garland, and so in a writ of trespass for the hurting of his sheep( though briefs bee short comprehensions of things) the wrong is fully set down in this sort, Quare vi& armis centum oves ipsius A. apud T. inuentas cum quibusdam canibus fugauit, canes illos ad mordendum oves predict as in tantum incitando quod per fugationem illam& morsus canum praedictarum oves praedictae multipliciter deterioratae fuerunt& magna pars ovium illarum fetus abortiuos fecit. 
Fit. n. b. 89. I.   Nomomath. 
Well what say you to these words ( animo iniurioso) whether are they needles or not  Anglonomoph. 
These words carry sense in their foreheads: for they amount to as much as malitiose in our law and that ought to be set down to distinguish it from iocose as Codicgnostes hath before very well reasoned: and when the action soundeth to malice, the word malitiose or the like in substance is to be used, as well as when the action soundeth to deceit, the word fraudulenter or some equiuolent term is of necessity to bee expressed.  Nomom. 
Of these matters then I know what to think, and will move no other doubt or question of them: Now Anglonomophylax, because I think at the common law an action vpon the case conceived vpon a slander doth most resemble this action of injury before described, let me therfore know the form of the declaration, which is fit for that action.  Anglonom. 

13 The form of a declaration vpon an action vpon the case resembling actione● iniuriarum.  You haue conceived in this a right opinion, and I will roundly show unto you the form of the declaration whereof you spake, because it is very plain and much in use, it is thus: W.C. queritur de P. L. in custodia mar. pro eo viz. quod cum praedictus W. bonorum mominis ac famed ac honestarum conversationis, gesture,& conditionis fuerit& vt verus ligeus dom. Reginae nunc, absque ●llo scandalo ac sine quacunque macula latrocinij, furti, falsitatis, vel cuiusuis alij criminis ac sine ullo scandalo earundem macular',& ab omnibus huiusmodi fallacijs dolis, et malis illesus, intact', et immaculatus a tempore natiuitat' sue hucusque se gesserit, habuer' et gubernauer' et huiusm' stat', conuers. et honest' apud vicin' suos et vniuns. fidel' dom. reg. nunc subdit' quib. id. W. cognit' erat sine aliqua criminosa nequitia latrocinij furti& cuiuscunque insignis fraudis aut huiusmodi criminis hucusque immaculatus fuerit: praedictus tamen P. L praemissorum non ignarus, ex eius diabolica instigatione,& peruersa malitia, machinans statum, honestatem, necnon famam& opinionem dicti W. laededere,& funditus deprauare, ac eundem W. de tam malis conuersatione conditione& gestura, apud omnes dominae Reginae fideles subditos acceptare, vt idem W. omnino periret ac totaliter destrueretur ac vtvniuersi fideles subditi dictae dom' Reg. a consortio ipsius W. penitus se subtraherent 25. die Septembris anno &c. apud L. in presentia& audientia A. B. & aliorum multorum fidedignorum dictae dominae Reg. eodem W. notorum, de eodem W. dixit, retulit, publicauit,& alta voice pronunciauit& asseruit in haec verba in Anglicis verbis sequentibus viz. Thou art a thief and thou hast received xx. pounds of my goods: quorum quidem verborum propalationis& relationis pretextu, predictus W. de suo statu bono nomine et in negocijs suis: quibus cum honestis personis& dict' dominae Reginae subditis vsus fuit,& consortium habuerit multipliciter laesus, et deterioratus existit, vnde dicit qd deterioratus est,& damnum habet ad valentiam ducentarum librarum &c.  Nomomath. 
These two proceedings do little differ in substance, and there is in them me thinketh great redundancie of words, which might well be spared, but tel me I pray you is there such necessity of these formal terms, that if they be wanting or changed, the declaration, or proceeding shall abate?  Codicgn. 

14 The cutting off of delays by the civil Law.  Surely, because the tedious and odious protracting of suits did greatly offend iustice therefore to cut off delays, and that suits might not be endless,& immortal( for matters of form and the exceptions to them were grown to such an excessive heap and infinite number, that the whole age of man did scarcely suffice for the trial of one svit,& he that failed in a syllable failed in the cause) our lawmakers therfore, that Iustice might walk in a shorter and more compendious way, did therefore very willingly roote up the thorny grove of cauilles, and sophistical wranglings, which had mingled themselves with good and reasonable exceptions, and scouring the stream of such weeds and sedges, they haue now made a smooth& more easy passage for Iustice 
In rubr:& nigr: C. de form:& impetrat: action: Iublat: .  Anglon. 

1● The diminishing of dela●es by the Common law.  Vpon like consideration& to the very same purpose our lawmakers haue made laws for amendment of writs, declarations,& other proceedings in matters of form, as may appear by several Statutes made for the establishing of such amendments, as namely 14. E. 3. c. 6. 9. H. 5. c. 4. 4. H. 6. c. 3. 8. H. 6. c. 12.& 15. 32. H. 8. c. 30. 18. El. c. 14. 27. El. c. 5. and by the equity& direct meaning of these Statutes, diuers amendements haue been made and used in our law: and therfore in an action of debt grounded vpon a recovery of damages had in an assize, the date of the writ of assize was not put in the Writ of debt, and it was held that it should be amended, because the clerk had the record for his instruction, 
13. H. 7. 21.  but whereas a writ of debt was brought per johannem Gargraue Esquire, and the obligation was joan Gargraue onely, this was not amended, but abated, because this misprision came of the plaintiffs part, Quere tamen, but 8. E. 4. and 11. E. 4. if in an action of debt the clerk of the chancery haue the obligation with him at the time of the making of the writ, and there bee variance between the writ and the obligation, it is clearly amendable, but if no addition bee given to the defendant, that is not amendable, 
8. E. 4. 4 11. E. 4. 2.  and 22 Ed. 4. if an action of debt bee brought against executors of the debt of the testator, if the writ be in the Debet and Detinet, it is not amendable, 
22. E. 4. 21. per Cur.  and in a writ of Audita querela the surname of the defendant was Langawaite, and in the Indenture of Defeafance his name was Langwaite without the letter (a) in the midst, whereupon the writ was amended by statute, because that was not of the substance of the name, or surname; and also it was to bee intended that the clerk had the Indenture of Defeasance at the time of the making of the writ, 
21. H. 6. 8.  and so in an action of debt, where the writ was hill, and the Obligation was hull, the writ was amended, 
22. H. 6. Amendment 31 37. H. 6. 32.  and where more was in the Obligation then in the writ, it was amended, 
19. H. 6. Amendment 47  but 41. E. 3. it is held by Finch. that a writ original shall abate for default of form, and shall not bee amended in the courts of common Lawe, for though it be pleadable there, yet( as Master Statham reasoneth) the chancery is an other Court, and a superior Court: 
Stath. Tit. Amend 20. H. 6.  and therefore the things done there cannot be altered in Courts of common Law, 
41. E. 3. 14. {per} Finch. 9. H. 7. 16. per Vauis.& 22. E. 4. 20.  and for the more full& forcible destruction of delays& ambushes in pleading, it is by the common Lawe ruled, that every demurrer vpon a plea which goeth in bar, and to the disproof of the Title is peremptory: and though a plea in Abatement of a writ be not peremptory, but a respondeat vlterius, yet if the plea in Abatement of a writ be tried by the country, that is doubtless peremptory for the delay of the party, 
48. E. 3. 10. {per} Finch. 34. H. 6. 8. 50. E. 3. 20. 34. H. 6. 37.  But it is peremptory onely against the tenant or defendant, not against the plaintiff or demandant, for he is still at large. 
5. E. 4. 90. 2. E. 4. 10   Nomomath. 
Let me interrupt you Anglonomoph. for I do very much desire to hear of you and Codicgnostes, the forms of the defences or bars, which the defendants are to make against these declarations, before recited by you.  Codicgn. 
I will make known unto you the most common and usual form of pleading in bar in this case. 
16 The form of a defence or bar in an action of injuries  Vt vobis clarissimo magnifico &c. constet& legitime appareat de innocentijs, inculpabilitatibus, legitimisque defensionibus predicti Sempronij delati, preuenti, seu inquisiti, ipsumque ad malam, iniustam, dolosam,& iniquam nonnullorum svorum maleuolorum& inimicorum dolationē, instigationem, seu denunciationem fuisse preuentum,& in processu inuolutum, et per vos vestramque definitiuam sententiam dictus &c. delatus, seu preuentus, seu inquisit' pronuncietur& declaretur innocens, exoneratus,& minime culpabilis sibi impositorum, vt ab eisdem impositis eadem vestra sententia absoluatur: dictus vero denuntiator in omnibus damnis, interest,& expenssis erga eundem praeuentum delatum seuinquisitum condemnetur, condemnatusque ad refarciendum& soluendum cogatur& compellatur,& alias ius& iusticia eidem praeuento& intitulato fiat& administretur: Inprimis igitur dicit, ponit, asserit& quatenus opus erit, prout supra, justificare intendit, quod ipse praeuentus, seu denunciatus ex nobilibus, catholicis, legalibus, probis, honestis,& in omni genere vertutis exercitatis parentibus, seu genitoribus, traxit originem. Item dicit& ponit, quod dictus intitulatus& preuentus vestigia dictorum parentum svorum insequens, toto tempore vitae suae, fuit& est catholicus, legalis, probus, honestus, absque eo& praeter id, quod Titius praedictus querens, de eodem intitulato seu praeuento aliqua laborauerit infamia, sinistra suspicione, aut mala fama. Item& quod semper pacifice,& quiet inter omnes se habuit& conuersatus fuit omnibus prodessendo,& neminem ledendo seu offendendo. Item negat se dictum Titium pulsasse, verberasse& ei vel cuiquam alteri via facti, seu dicti, seu alias nocuisse,& vulnera, liuores, vel concussiones intulisse, Ex quibus apparet dictum intitulatum seu praeuentum fuisse& esse a sibi impositis innocentem& minime culpabilem, indebiteque& injust intitulatum& preuentum,& in processu inuolutum fuisse,& per consequentiam in via absolutionis& relaxationis fore& esse.  Nomomat. 
This bar is somewhat long, let me hear the form of your bar Anglonomoth. which I hope is a great deal shorter.  Anglonomoph. 
It is so, if you will haue the ordinary plea in bar which comprehendeth the general issue. 
17 The form of a defence in an action vpon the case  For it is no more then this: Et praedictus P. L. per R. attornatum suum venit& defendit vim& iniuriam quando &c.& dicit quod ipse non dixit, retulit, nec propalauit de praedicto W. verba praedicta &c. modo& forma quibus idem H. superius versus eum queritur,& de hoc ponit se supper patriam& praedictus H. similiter &c.  Nomomath. 
This is brief and substantial, but now what is to be done according to the order of your proceeding;  Codcign. 

18 The form of trial by the civil law.  Now that the matter is grown to this ripeness, so that the one maketh perfit affirmation the other absolute denial, the matter is to be tried by proofs& witnesses, which now are to be examined.  Anglonomoth. 

19 The form of trial by the common Law.  So it is with us: for the cause now being come to issue, the trial is to be by the country, which as to such matters in facto, are to bee directed by the testimony and evidence of witnesses.  Nomomath. 
Well if the defendant happen to be found not guilty, what is then the iudgement vpon these precedents. 
20 The form of iudgement in the civil Law.   Codicgn. 
It is thus: Et nos Seneschallus praedictus visis,& diligenter Iurisperitorum nostrae praesidialis Curiae consilio totius praesentis processus merit, appensate, diligenter,& accurate examinatis, Quia per processum defensionalem dicti rei praeuenti denuntiati, & intitulati, elicitur intentio praedicti querentis, ideo ex his,& aliis ex processu resultantibus, per hanc nostram definitiuam sententiam, quam pro tribunali more maiorum nostrorum sedentes in his ferimus scriptis dicimus, pronuntiamus& declaramus dictum reum denuntiatum& praeuentum non fuisse, velesse criminum fibi impositorum culpabilem: Quinimmo a dictis criminibus sibi impositis fore,& esse absoluendum, quem eadem nostra sententia absoluimus, expensas hinc ind fact us in causa compensando &c.  Anglonomoph. 
Our form of iudgement is a great deal shorter, for it runneth thus: 
21 The form of entering iugment at the Common law  Ideo consideratum est quod praedictus W. nihil capiat per breue suum praedictum said sit in misericordia sua pro falfo clamore suo ind,& praedictus P. Laeat ind sine die.  Nomomath. 
Well ye haue been long in handling these matters of formal proceeding, wherefore I will ask you of this, but one question more, and then will pass over to entreat somewhat of common trespasses& wrongs, resolve me first in this, whether may the executor of the testator that was wronged by such diffamatory speeches, haue an action for the said slander after the death of the testator?  Codicgn. 
It neither lieth for the executor of him that is slandered, 
1 That by the civil Lawe an action of injuries will not be by executor against exec●tor.  nor against the executor of him that did slander, because noxa caput sequitur, unless the svit were begun in the life of the testator, in which case the executor may well prosecute it 
Inst. de iniur̄§ non omnes&§ pena●es ff. de iniur̄ l. iniuriarum. . 
1 That by the Common law actio personalit mortiur cum persona, unless it be in some special cases.   Anglonomoph. 
It is a rule with us that actio personalis moritur cum persona: yet this is not generally and indefinitely to be admitted, but only in such case, where the wrong did principally& immediately rest vpon a mans person,& when( as the civilians say) it is ita affixa ossibus vt in alium transferri non posset 
ff. de pecu. l. si quis ergo. . And therefore where one is entitled to haue a writ of account, or an action of trespass for the taking away of his goods, and is attainted of treason or felony, the queen shall haue these actions as forfeited to her highnes 
30. H. 6. 5. 28. E. 3. 92. , but otherwise it is of a trespass of battery 
Stamf. f. 188 , and so it hath been pronounced for law, that if a termor make wast, and after he maketh his executors and death, the action of waste is gone, for it lieth not against his executors 
23. H. 8. Br̄e Wast 138 46. E. 3. 31. , but though a covenant bee a thing merely personal, yet both an executor and an administrator may haue a writ of covenant 
Fit. n. b. 146. D. 2. Mar. 112. Dy. .   

The eleventh Dialogue of common wrongs and Trespasses.  NOmomath. 
Now that ye must treat of common wrongs& trespasses, I doubt not but you will be less troubled with my questions, because such matters ar more plain to you, and to me not very difficult. Notwithstanding for learning sake,& because I would ground myself vpon some certainty of knowledge, I will move some doubts of these matters: first how many sorts or wrongs are there?  Codicg. 

1 The diverse kinds of injuries by the civil law.  injury as we say is two fold, for either it is done re or verbis: re, when a man is assaulted or beaten: verbis, when a man is slandered& by terms disgraced or discredited 
L. 1. ff. de iniurijs. .  Nomom. 
I pray you Anglonomoph. illustrate and explain the members of this division by some convenient cases.  Anglon. 
very willingly, 
2 What an assault is according to the common Law  and to begin with the first: an assault is made when one man menaceth an other with a weapon or staff, though never a blow be strooken, yet this is an assault 
22. Ass. pl. 60 , and 43. E. 3. the Writ was Quare insultum fecit vulnerauit verberauit& maihemauit, and it was allowed though the wrong did sound to bee maihem 
43. Ass. 39. , and as it was held per Curiam, where a man maketh an assault it is not lawful for any to beate him, if the party assaulted may escape with his life 
2. H. 4. 8. , yet the opinion of M. brook is that he may beate him if he cannot otherwise escape without stripes or wounds or maiming 
Br̄ trespass 71. , yet the opinion of 9. E. 4. is, that I may beate a man if he will take my goods from me: and a seruant may justify a battery in the defence of his master 
9. E. 4. 28.& 48. , but the assembling of people in a warlike manner is no assault, but he that is the ringleader of such assemblies, before he may be impeached of assault must do something else, as namely by uttering contumelious speeches, or stretching out his arms, or some other token whereby his intent may be known 
17. E. 4. 4. , and he that cometh in company of them that make the assault, or he which cometh to aid them, is a principal trespasser 
22. Ass. pl. 43 , and if a Iustice of Peace see a man doing an assault, he may presently arrest him by commandment or word, to the intent that he may find surety of the peace 
9. E. 4. 3. , and it is lawful for one man to beate an other in defence of his goods& chattels, or of his wife 
19. H. 6. 31 35. H. 6. 51. & a man may likewise haue an action of trespass for the entering into his house 
Fit. N. b. 88. l. , but if a man licence one to come into his house,& he doth a trespass there, he shall be punished for the trespass but not for the entre which was granted unto him 
3. H. 7. 15. towns. , and nothing is more usual then a man to bring an action vpon the case for a slander, 
1 That the common Law giveth an action vpon the case for a slander.  and therefore if one man call an other bankrupt, an action vpon the case will lie 
6. E. 6. 72. Dy. , or if one say to an other that he is infected of the robbery and murder lately committed and smells of the murder, an action vpon the case will lie for these words 
15. Eliz. 317 Dy. , and the Duke of Buckingham brought an action de scandalis magnatum against one Lucas, because he said that the said Duke had no more conscience then a dog, and so he had goods he cared not how he came by them 
4. H. 8. rotul. 659. , infinite other cases might be brought tending to this purpose.  Nomomat. 
I will trouble you no further herein but tell me Codicgnostes, whether by your Law may the hushand haue an action for the wrong done to his wife, the father for a wrong done to his son, and the master for an injury done to his seruant? 
1 That by the civil law an action o● trespass lieth by the father, husband, master, for a wrong don to the son, wife, seruant.   Codicgnost. 
They may, and the Praetors edict in our Law to that intent is very manifest& notorious 
L. r. ff. de iniur. .  Anglonomoph. 
To that our law accordeth: and first to show, 
2 That by the Common law the husband may haue an action for a wrong done to his wife.  that the husband may haue an action for a wrong done to his wife, it seemeth that these words: & eam cum bonis& catallis praedicti A.( mariti) ad valentiam &c. abduxit, are necessary in the Writ, for as to the taking& detaining only of the woman, it seemeth that the svit will only lie in the spiritual Court, where things any way touching matrimony are to be decided: yet I will not be peremptory herein, because M. Fitz. opinion is 
Fit. n. b. 52. K , that the svit for the taking of the woman onely, without mentioning any other thing in the Writ, is maintenable at the Common law, howbeit he putteth this case, that if a man sue in Court Christian for the taking and detaining of his wife, which was lawfully married to him, if the other sue a prohibition hereupon, he may haue a consultation quatenus pro restitutione uxoris suae duntaxat prosequitur 
Fitz. ibidem , and if the woman do lie asunder from her husband the svit will lie in the spiritual court to haue again the fellowship of marriage and to dwell together as may appear by these words of the Statut 
D. Cofins in li. de iurisdict. ecclesiastic. :( unless he will receive her without ecclesiastical compulsion 
13. E. 1. c. 34. West. 2. ) but where a man bringeth an action at the common Law de muliere abducta cum bonis viri: he must be sure that his wife hath attained to age of consent& that she hath actually consented to the marriage: for where a man marrieth a wife before she be of the age of 12. yeres,& after she cometh to the age of 12. yeeres,& before she assent or disassent one taketh or carrieth her away, the husband in this case cannot haue a Writ of trespass cum muliere abducta cum bonis viri by some authority, because it is not properly a marriage till she assent 
47. E. 3. Br. trespass 420 : yet M. brook doubteth hereof,& rather thinketh vpon very good reason the contrary, because it shall be intended a good marriage until the woman do disassent 
brook ibid. : but where the marriage is complete and without all danger of contradiction, though the wife be dead or divorced at the time of the action brought, yet the action is maintenable for the husband 
43. E. 3. 22. , but the word ( rapuit) must bee in the Writ as well as the word ( abduxit) and therefore it will not ly against a woman, because one woman cannot ravish an other 
43. E. 3. 23 ,& if a man do carry away a woman by the licence of her husband, 
3 In what cases by the common law an act●on will ly for the master for a wrong done to his seruant.  this Writ will not lie 
1. E. 4. 1. , for it is vi& armis,& as to the bringing of an action by the mast. for some hurt don to his seruant, it is frequent in our books: for by the beating, or maiming or wounding of the seruant, the master hath the loss of his service: 
3. H. 6. 53. & therfore if any man take the seruant of an other man out of his service, an action of trespass will ly against him that taketh him 
39. E. 3. 38. Fit. n. b. 91. I. 21. H. 6. 31. , but if a man find an other mans seruant wandring abroad& retain him, this is lawful, if he knew nothing of the first retainer. But though by the common Law an action of trespass quare vi et armis did lye against him that took an other mans seruant out of his service: yet if he did only procure him to go out of service, and then retained him, the master could haue had by the Common Law no action, but only an action vpon the case, but now by parliament an action is given vpon the statut of labourers 
11. H. 4. 23. Br̄ trespass 92. : Lastly it is plain by our Law, 
4 In what cases by the common Law an action will lye for the father for a wrong don to the son.  that the father may haue an action for the taking away of his son and heir, but in the Writ he must say cuius maritagium ad ipsum pertinet: for this Writ is given unto the father, because the marriage of his son and heir, or of his daughter and heir doth of right appertain unto him, and if the father haue married his heir before, so that he hath once enjoyed the fruit and benefit of the marriage, which the Law allotted unto him, he shall not haue this Writ 
12 H. 4. 16. 8. E. 2. Trnns 235 32. E. 3. Gard 32. , and if a man take away an other mans son and heir apparent and bestow vpon him good apparel, and the father seizeth his son as he lawfully may, he shall not be impeached for the taking of the apparel; for in that he may make a good justification for the taking of the body, the justification must needs extend to the apparel of the body, because the Law considereth not bare and elemental bodies, but bodies appareled: And Haukf. with others reasoneth well, that if a man put an other into apparel, and speaketh nothing of the loan of it, neither by express act reserveth the property to himself, this is a gift in law: and if an aduowterer do take a woman from her husband, and apparelleth her with good attire, the husband may take the wife again, and with her the apparel 
11. H. 4. 31. Br̄ trespass 93. , and as the father may haue this remedy for his son and heir apparent, so may the mother, likewise if shee be an inheritrix 
30. E. 3. Br̄e 300 : so that I marvel at Mr. Catesbies opinion 9. E. 4. that this writ lieth not for the wife 
9. E. 4. 53. .  Nomomath. 
I will require no more at your hands Anglonomoph. of this matter, now I pray you Codicgnostes resolve me in this, whether when any mans beasts do any hurt unto an other man, if this be not done by the owners act, default, or procurement, shall the master make good the damage sustained by such wrong.  Codicgn. 

1 How the owner shall be punished by the civil Law for a trespass done by his beasts.  Surely brute beasts, because they want understanding and reason, cannot bee said properly to bind their owner( noxaliter, so that the fault should be accounted his) for any ravine hurt, or damage whatsoever, neither do such wrongs bind the owner of the beasts ex quasi delicto, for a matter like unto a wrong: yet notwithstanding for preventing of hurt, that may in such sort happen, the law doth provide, that if the owner will not voluntarily yield up the beast as a recompense to him that is endamaged, he must render the damages, or else by the authority of the judge bee awarded& compelled to yield up the beast 
L. 1. ff. si quadru: paup: fec: dic. , and therefore if any man do keep or nourish a mastiff, or boar, or fox, or bear, or Lion or wolf, or some like beast which doth hurt or damnify an other man, he that receiveth the hurt shall recover damages against the owner of the beast 
§ Caeterum Instit. si quadru: pauperiem fecisse dicatur. , but if such a beast do escape away from me, 
2 In what, case he shal not be punished though his beasts do hurt to an other man.  or goeth so far from my pasture or ward that I cannot by pursuing recover it, neither do I know whether it is fled, and so being escaped from me it do hurt an other man, in this case I am not to sustain any damage, because in this case, I am free from fault: for the beast by such escape ceaseth to be mine, and may become his that shall take, or seize, or kill it. 
d. l. 1.§ in bestijs&§ Caeterum, versic. Deniq̄, si vrsus   Anglon. 
To this our Law agreeth, for we haue a Writ of trespass which saith, Quare vi& armis centum oves ipsius A. cum quibusdam canibus fugauit canes illos ad mordendum oves predict as in tantum incitando qd per fugationem illam& morsus canum praedictorum oves praedictae multipliciter deterioratae fuerunt& magna pars ovium illarum faetus abortiuos fecit &c. per qd &c. 
Fit. n. b. 89. L  But if a dog do kill or hurt any mans beasts, 
3 That by the Common law a man shall be punished for a trespass don by his beasts.  the master being ignorant of his mischievous property, he is not punishable 
28. H. 8. 25 Dy.& 29. Dy. , whereby I gather that if he know of his property( though he do not set on his dog or maintain him to do hurt to others) he shall bee punished by action of trespass, and if a man do drive his beasts through the queens high-way, to which way my land that is sown with corn is adjoining, and the beasts do enter and spoil my corn, the owner shall be punished for this, though he did drive them out presently, or earnestly endeavour to chase them out of the corn 
10. E. 4. 7. , so if a man chase his beasts in the high way, and they do escape into land, which is not enclosed and the owner doth freshly pursue them, and chaseth them out, yet this is no good plea in bar without showing that the tenant of the land, and all those whose estate he hath in the land, haue used to enclose the said land toward the high way 
15. H. 7. 17 .  Nomomath. 
I crave no more of this matter: now I would haue you to transfer your invention to the discourse of other offences against the peace, which I do thus dispose and distribute to your handling: because all offences against the peace are either in an inferior degree, as these whereof ye haue lastly spoken, or in a middle degree, as unlawful assemblies, riots, routs, and forcible entres, or in a higher degree, and they be of three sorts, namely such as bee committed against the dignity of man, as treason and rebellion: or against the life of man, as murder, manslaughter, and homicide by chance: or against the good estate of man, as theft, burglary, and robbery: I would therefore haue you first to begin to treat of unlawful assemblies, riots, &c. and then to go on with the rest, accordingly as I haue set them down.  
Codicgnostes, Canonologus, Anglonomophylax, we are willing to pleasure you in any thing that we can, and as you propose doubts of every of these titles severally, we will endeavour to satisfy and resolve you to our power.   

The twelfth Dialogue of unlawful Assemblies, Riots, Routs, and Forcible entries.  NOmomath. 
Tell me Codicgn. what do you take to be public force in your Law?  Cdicgn. 
When an unlawful assembly is met together in the high street, 
1 The description of public force by the civil law.  or in the open sight of men, to offer abuse, hurt, or injury to a mans person, or to take away his goods from him by violence and strength of hand. 
L. armatos. ff. ad L. jul. de vi pub:   Anglonomop. 
That likewise is public force by our Law: 
2 That in the matter of public force the Common law agreeth with the civil.  of private force done to a mans person we haue spoken before, which if it bee publicly done, it turneth to be public force, but as to the taking away of goods by open force, if a man do disseisie an other, and when he hath entred, he doth carry away the chattels of the disseisie, this is in our Law a disseisin with force and arms, 
3 A difference by the common Law betwixt public force and open force. & the disseisor shal be punished by imprisonment 
11. H. 4. 16. West. 1. c. 37 4. H. 4. c. 8. , and a man disseised an other but not with force at his first entre, and it was found by assize that incontinent after his first entre, he cut down trees and this was awarded a disseisin with force and arms. 
30. assize 50. assize 301.   Nomom. 
What punishment haue they by your laws which commit such force?  Codicgn. 
The punishment of this fault in our Law, 
4 The punishment of public force by the civil Law  is diuersifyed by the quality of the persons that commit it: for otherwise bondmen, otherwise they that are free, are punished: and if it be mixed with an other fault, it was punished in a free man by ancient laws, with perpetual banishment, and the confiscation of goods 
L. 2. ff. de publ. judic.& l. fi quis ad se fundun. C. eod.&§ item lex Inst. eod. , but now it is punished with banishment for a certain time without confiscation of goods 
§ relegat. Inst. quib. mod. ius pat. potest. soluit. , but it is to bee noted that the said punishment only taketh place when force is actually done or committed, but if nothing be done forcibly, but certain men having weapons are assembled in a great multitude together to commit force, the punishment of that offence is arbitrary and left to the discretion of the judge, but the Law setteth down this mulct in certain, that if he be a man of worth he shall pay to the common treasury, an hundred pounds in gold, whosoever in such sort offendeth. 
L. ff. C. Ad L. jul. de vi publ. 1.& 2. in prin. ff. eod.   Anglonomophilax, 

5 That by the common Law the counsellors& committors of force are alike punished  By our Law if a disseisin be found to be done by diuers men, and to be done by force, and one of them is found to bee but a counselor of the disseisin, yet every of them shall be awarded to prison 
17. Ass. pl. 14 , and if a man be attainted of trespass at the svit of the party, or of a disseisin with force, wherefore he is commanded to prison, if he be present, or that he shall be attached, if he be absent, whereupon he is attached and put in prison at the Kings svit, until he haue paid a fine to the King, and after he findeth pledges for his fine, and prayeth that he may bee at large, he shall not be permitted to go at large, until the Court be sufficiently informed that be hath agreed with the party, if the plaintiff do require before that his body may continue in prison, until the defendant haue agreed with him 
22. Ass. pl. 74 . An unlawful assembly is where above the number of two do assemble to do some unlawful act, 
6 What on ●●lawful ●ssembly is by the Common law  and they do it not in fact, but after their said assembly they depart without doing more, 
7 What a rout is.  and a rout is their tumultuous proceeding to perform the act purposed: but a riot is when more then two do assemble together to the intent to do an unlawful act, 
7 What a riot is.  as to beate or to maim an other, and they do this in fact: but if diuers assemble, and none know to what intent, this is not punishable till the intent be known 
Fitz. just. de P. 28 mar. lect{ur} 8. Cromp. just. de P. 53. , and when men are indicted of riot, they commonly pray to be admitted to their fine, that by the paying of their fine they may escape imprisonment, but de rigore juris they ought as well to be imprisoned as fined. 
Cromp. just. de P. 53. b.   Nomomath. 
I would know of you Canonologus whether there be any penalty in your Law prescribed for such offences.  Canonol. 
Yes there is a penalty set down for clerks, and such as haue taken holy orders, 
9 The punishment of the aforesaid offences by the Canon law.  for if they do commit public force, they are to be excommunicated until they be reformed,& they may be deprived for such public offence. 
c. veritatis exit. de do●o& contum. &c. Inquisitionis, &c. qualiter& quando extr. de accusat. &c. licet. Heli extr. de simon.& .c. Generali de elect: lib. 6.   Nomomat. 
But what if the Magistrates in the country be negligent and remiss in punishing such offences, hath nor your Lawe Codicgnostes provided reformation for them.  Codicgn. 
Yes, 
1 The punishment of the Iustice not punishing such offences by the civil Law.  if any judge will not do Iustice in the repressing& punishing of such offenders but shall either defer the punishment, or neglect to give sentence, or shall partially demean himself in the smothering of that fault, or shall not inflict the punishment due to such offences, the said Magistrate is by Law to be made infamous, to be deprived of his office,& to be made uncapable& unable for any other office,& further he is to be fined a C. li. in gold. m  Anglonomophylax, 

2 That the just. of Peace by the Common law are punished for remissness of punishing others, for the aforesaid faults  Our Law is likewise severe against such: for if the Iustices of Peace, and sheriff, or vnder-Sherife do record the force, and do not commit the rioters to prison, or if they commit them, and do not record the force, they shall pay every of them a C. li. for the Statute is, that they shall record and commit 
13. H. 4. c. 7. , and if any riots, routs, or assemblies of people be done against the Law, two Iustices of Peace at the least with the sheriff or vnder-Sherife must go to the place where the riot, &c. is committed, and they must take the offenders &c. and this is by the Statute of 13. H. 4. cap. 7. but notwithstanding this Statute Fineux chief Iustice, was of opinion 14. H. 7. that forsomuch as the Statut is but merely in the affirmative, that therefore one Iustice of Peace may go and take power with him, and repress the rioters &c. and he needeth not to stay for his companions, nor for the sheriff, nor &c. because the Statute is a beneficial Law made to avoid a mischief which might otherwise happen if one Iustice should stay for his companions 
14. H. 7. 10 {per} Fin. Fitz. Iu. de H. 16. , and the sheriff and Iustices of Peace make take with them as many men in harness as are necessary and guns &c. and may kill the rioters if they will not yield themselves: and if the two Iustices which be nearest unto the place, where the riot is committed, and the sheriff or under sheriff do not execute the said Statute of 13. Henr. 4. they shall every of them pay an hundred pound, as before I haue said and the other Iustices of the same county, where the riot is committed shall be fined for the not repressing of the riot, if there be any default in them 
23. Eliz. crumb. Iu. P. 54 , but in such case it seemeth that the Iustices of the Peace should haue notice of the riot gluen unto them, or else that it should be so notorious that by common intent they may take notice of it. 
Crompt. I. P. 54. b. Dyer. 210   Nomomat. 
Wee will proceed no farther in this matter, but will now pass to the title consequently ensuing.   

The thirteenth Dialogue of Treason and Rebellion.  NOmomat. 
Let me know Codicgnostes before we enter into particular in quirie of the things which are in themselves, and ipso facto treason, what in ancient times, and other Common weals, hath been taken to be treason, and how hath it been punished, for I think that will give great light to matters subsequent, because that which is past was the original of that which is present,& it is good in matters of common weal to haue a diligent retrospect to the course of former ages.  Codicgnost. 
It is true, 
1 The reason is shewed by Codicgnostes wherefore treason is aptly termed a fault ●gainst the dignity of man.  and first I will show how aptly you haue termed this offence to be a crime or fault against the dignity of man: for as nothing should more debase mans nature, then if against man, whom God hath made little inferior to the Angels, whom he hath crwoned with glory and worship, whom he hath made Lord of the works of his hands, and hath put all things under his feet: 
Psal. 8. ver. 6.7.8.9.  If I say against him the beasts of the field should rage and rebel, as it happened in Rome, when as a preamble of the fatal confusion of that City, all the beasts subject and necessary to mans use, namely dogges, horses, asses, oxen, &c. would not suffer their masters to touch them or come near them, without destruction and peril: 
Oros. lib. 5. jul Obsequens in lib. de prod. D. August. li. 3. de civit. dei ca. 23.  so surely when they, who are in subiection to a Prince or monarch, do violently and mutinously break the bond of obedience and loyalty, and will do as they list, and thereupon rebel, and treacherously conspire against the life of their Prince, this is against the dignity of man, who being Lord of brutish creatures, doth imitate them, and becometh as wild and savage and disobedient as they. Now I will call to remembrance, how this disloyalty or treachery in the highest degree, hath in other ages received censure and punishment. 
2 The punishment of treason in ancient times.  Traytors were always loathed, detested; and sharply punished of the romans: and treason was accounted far more grievous then parricide, 
Dionis. Halicarnass. Tit. 2.& 8  sometime they were thrown headlong down a rock, as Cassius: sometime hanged, as Lentulus and others of Catalines seditious society, or by some special kind of infamous death executed, as Suetonius reporteth, 
Sueton. in Neron. c. 49.  and they which conspired against Augustus, when he was newly come to the Empire, bore the smart of their treacherous designments, and were severely punished for the imagination of that heinous mischief. 
Dio. Nicae. in August.  This Iustice of the heathens is justified by divine authority. Non mittam manum meam in vnctum domini. 
1. Reg. c. 24.  Quare non timuisti mittere manum tuam vt occideres vnctum domini: 
2. Reg. c. 1.  for surely the majesty of a prince offended& hurt, doth require a deep reuenge: and if Nemesis, that is reuenge itself, doth take sharp punishment of those which offer any violence to the person of an ambassador, 
Appian. in select.  representing a Prince or monarch; with what extremity of pain are they to be tortured, which imagine or go about to compass the death& downfall of their liege and dread sovereign: wherefore worthily doth the excellent Lawyer out of Code apply these titles of majesty unto kings& monarchs: Celeste oraculum, divinitas, Eternitas, Eternales vultus. 
Alberic. gentiles lib. 2. lection.& epistolar. c. 14.  majesty therefore, which by some is said to be the daughter of honor& reverence, ought always, and in all things to be respected with honor and reverence.  Nomom. 
show me I pray you what may properly & justly be termed treason by your laws.  Codicgn. 
It is treason when any thing is seditiously attempted against the Prince or common weal: likewise to help the enemies of the king, 
1 The diuers kinds of treason by the civil law.  or commonweal with munition, money or counsel, likewise to take any castles, fortresses or holds against the king or common weal: also to suffer him to go out of prison who is accused of this fault,& he that cometh or causeth false money, 
l. 1. 2. 3.& 4. ff. ad l. jul. maiest& l. quisquis C. eo.& C. de fals. mon. ●pen.  which may be committed diverse ways. I. When he coyneth money, 
2 The diuers kinds of treason by coining of money in the civil Lawe.  which hath no authority to coin, 
l. qui falsam. l. qui nomine& l. lege Cornelia testam. ff. ad leg. Cor. de fals.  because to coin or form money ad regalia pertinet, 
C. unico, quae sunt regalia in vsib. feud. l. 2.§ deinde cum aerarium ff. de orig. jur.  2. When money is coined in an unlawful and disproportionable matter, as when the diuers impressions of particular coins of silver& gold are stamped vpon copper, brass or tin or pewter, 
l. 1. in prin. C. de fals. monet.& l. quicūq̄ nummos ff. ad l. Corn. de fals.  3. When one that hath authority or licence to coin money with a peculiar impression or character, doth use a strange and unlawful stamp of his own devising, 
d l. leg Cor. test. in prin.  4. When the lawful& ordinary weight of the coin is falsified,& altered by one that hath no authority to alter. 
c. quanto de jure jur. extra& l. 1. de veteris numism potest C. li. 11  5 To utter or cause to be uttered false money knowing it to be false, 
l. leg. Corn. cauetur. ff. de fals.  In all which cases, 
3 The punishments of traitor, by the civil Law.  except the last, the offenders do suffer punishment of death, some of thē being burnt by fire, 
gloss. in l. 2. C. de fals. Moneta. su{per} verb. flammarum in 3 solut. ad argum. l. 1.  othersome being thrown to devouring beasts, 
l. quicūque cum sequent. ff. ad leg. Cor. defal.  and their goods be confiscated, 
l. si quis in princ. C. de fall. mon.  but he which uttereth false coin is punished with serving al his life time to thē which dig in mines for mettal, 
ff. de variis& exit. or. crim. & the punishment of thē that clip money is by our law capital. 
d l. quicunque ff. ad leg. Cor. de fals.  But he that coineth money with the impression of a strange prince is not punished with a natural, but with a civil death: for he is punished with perpetual exile,& his goods are confiscated, for every Prince of every nation and kingdom hath his several stamp and coin, and so they had in ancient times: 
4 The several coins of fore in princes in ancient time.  the Aetolians did give for their coin the image of Hercules breaking with his club the horns of Achelous: the thebans did give the twibil of Hercules: 
l. 3. ff. eod.  the Trachinians Hercules sitting: the Macedonians Herc. his club and the horns of a goat: the Thrasians, Bacchus crwoned, and Hercules their deliverer: the Dymeans a goat, which did tread vpon a frog: the Corinthians Pegasus, with Neptune having a three-forked maze in his hand, sitting vpon him: the Naxians did give Bacchus with a long beard, and a satire with a pot in his hand: the Metapontinians Ceres with a sheaf of corn: the Baeotians did give a Fly with a Hart,& Bacchus his mazzard with a cluster of grapes: the Dardanians did give two cocks fighting: the Athenians an owl: the argives a wolf: Alexander the great gave for his coin the image of Bucephalus his horse with victory having wings: Pyrrus, Pallas having a spear in her hand sitting on a throne: Aug. Caesar the star of Capricorn, under which he was born. 
Pollux. Sophocles interpraes. Hadrian: Iunius de renummar. in Nomen-clat.   Anglonomophylax, 
I will particularly examine all the precedent matters of your last discourse, which haue any resemblance or be of any use in our Law, sithence order enforceth me to speak of disorder, and of the disloyal, and seditious, and traitorous attempts against the person of the Prince, and the good estate of the Common weal, which may fully appear by a statut made 25. E. 3. de proditionibus cap. 2. and likewise by the Common Law, for as Thorpe saith 22. 
5 The diuers kinds of treason by the common law.  E. 3. 
22. E. 3. p. 49  it is treason to succour the kings enemies, and to levy war against the King in his realm, or to be adherent to the Kings enemies in his realm, by giuing them aid and comfort in his realm or other-where is made treason by the abovesaid Statut, as may appear by the case of sir Nicholas Throgmorton, who was arraigned for being of counsel with wyatt in levying his seditious war. 
1. Ma. Dy. 98 crumb. Iu. P. 40  And D. Story being beyond the sea, and practising with a foreign Prince to invade the realm and to work the death of our dread sovereign Lady the queen, was justly attainted of high treason, 
13. El. 298 Dyer  and Sherleys a Frenchman, taking with Stafford the Castle of Scarborough rebelliously in yorkshire, was arraigned in the Kings bench vpon an indictment of treason, which was contra ligentiam suam debitam. 
4. Mar. 144 Dyer.   Nomomath. 
It seemeth to me that these words should only extend to lieges and subiects.  Anglonomoph. 

6 How far forth this word( leageance) doth extend by the Common law.  Nay they do extend to any one who is in the realm in the time of peace, and he that hath the benefit of the queens peace( foreign or other) ought not to violate or disturb it any way, but if it had been in time of war betwixt the two kingdoms, then he could not haue been arraigned, but should haue been ransomed: 
7 How the Q. enemies are to be punished by the common law agreeing with the law of God.  but he that in a foreign common weal, where he is permitted to sojourn, 
4. Mar. 144 Dyer.  will raise tumults, and kindle rebellion, deserveth to bee punished as a rebel, and therefore it is truly and judicially said of Albericus gentiles: Criminosos, violentos, ne quidem veri dei tuetur altar, quos neque intuetur deus, nisi iratus, 
Alb. gentle. lib. 2. de Arm. Rom. c. 2.  And again: Innocentia praestat securitatem. 
A. Gent. li. 1 de Arm. Rom. c. 2.  And therefore the romans did well in arraigning Bomilcar of treason, who being a stranger conspired against their state: 
sallust. in jugurth.  But it is true which before I said, that if war be betwixt two Kings, as namely the King of Fez, and the King of Polonia, if the King of Polonia do in his own kingdom take prisoner one of the subiects of the King of Fez working mischief against him, this is lawful: but to arraign him or put him to death is unlawful: for a prisoner so taken is to bee put to his ransom, but not to open shane as a traitor: and therefore the Prophet said unto the King of Israell: An quos captiuos abduceres, gladio tuo& arcu tuo eos percuteres? Eliseus by a wonderful miracle did make the Syrians, enemies to the King of Israel, his captives, whom the King would haue slain, but the Prophet did forbid him by this argument, that they which are taken in war ought not to be slain, much less these whom God had given up into his hands. 
4. Reg. c. 6. josep. 9. Amb. 1 de office. 29   Canonol. 
indeed so is our Law, which saith, 
8 How enemies are punished by the Canon law.  Hostem pugnantem necessitas perimat, sicut resistenti violentia redditur, ita victo, vel capto misericordia debetur: 
c. 3. 23. q. 1.  and this Law hath been practised of the Grecians, 
Plut. in apop.  Romains, 
Alex. 4 gen. 7.  Thessalians, Illerians, Triballians, and Bulgarians, 
Nic. Grego. lib. 4. 6 & to this purpose it hath been said, vendere cum possis captiuum, occidere noli. 
Horat. ep. ad Quin.   Nomomat. 
I haue interrupted you Anglonomop. But I pray you continue that course which you proposed to yourself in comparing the assertions of the civil Law touching matters of treason, with your rules of Common Law.  Anglonomoph. 
Whereas he hath said that to suffer one to go out of prison for treason which is impeached for that crime, is treason: that is also agreeable to our Law established by Statute: whereof I will recite the words: de prisonarijs prisonam frangentibus dominus rex vult& precipit, qd nullus de cetero qui prisonam fregerit subeat judicium vitae vel membrorum pro fractione prisonae tantum nisi causa pro qua captus,& imprisonatus fuerit tale judicium requirat, si de illa secumdum legem& consuetudinem terrae fuisset conuictus. 
1. E. 1. c. 2. Rast. Felony 2.   Nomomath. 
do ye then account every suffering of a prisoner to escape, 
9 How break●ng of prison is taken in the Common law  to bee a breach of prison?  Anglon. 
Yea, for if a man arrest one for felony and after let him go at large whether he will: if he be arrested for felony it is felony, if for treason it is treason, if for a trespass it is a trespass & sic de singulis. 
Stamf. lib. 1. c. 26.   Nomomat. 

10 How treason is committed by coining of money according to the censure of the Common law  Well, I pray you proceed in your purpose.  Anglonomophylax, 
As to that which is uttered of Codicgnostes, touching the unlawful coining of money, it is for the most part consonant to the Common Law of this realm, as now it is, and as it was in ancient times by the testimonies of Bracton 
Bract. li. 2. Tit de crim. laes. may. , briton 
Britt. fol. 16. , and Glanuille 
Glan. lib. 14. , and the aforesaid Statute of 25. Edward the third maketh it treason for a common person to coin the Kings money without his warrant and authentic, which the statut calleth counterfeiting: and whereas the Statute saith( the Kings money) it must be intended the coin of this realm or the dominions of it: 
Stamf. 1. lib. 1. c. 1.  and this word( counterfeit) doth import, that if a man do counterfeit the Kings money, though he do not utter it, this is treason: 
6. H. 7. 13. 1. R. 3. 1.  and the forging and counterfeiting of coin of an other realm is made treason, as well as the counterfeiting of the coin of this realm. 
4. H. 7. c. 18. 1.& 2. P.& M. c. 11.  But then it must be currant by proclamation in this realm, 
1. Mar: c. 6. Cromp. I. P. 40  and as to the clipping of money hear the Statut of 5. of our sovereign Lady the queen. Be it enacted &c. that after the first day of May next coming, clipping, washing, rounding, or filing, for wicked lucre or gain sake, of any the proper money or coin of this realm, or the dominions therof, or of any other realm, allowed or suffered to be currant within this realm, or the dominions thereof &c. shall be taken and adiudged to be treason by virtue of this Act &c. 
5. Eli. c. 11.   Nomom. 
I pray you now declare the forfeitures and punishments of the several treasons.  Anglonomop. 
The iudgement of him that is convicted of high treason, 
11 The several punishments of treason by the common Law  is to be carried back to the place whence he came, and from thence to be drawn vpon a hurdle unto the place of execution, there to be hanged by the neck,& to bee cut down quick, and his entrails and privy members to be sundered from his body, and to be burnt within his view, and his head to be cut off, and his body to be divided into four parts, and to be disposed at the queens will. 
Stamf. lib. 3. c. 19.  This is the iudgement and sentence of condemnation of a man, but of a woman it is otherwise, namely that she shall be drawn on a hurdle and burnt, 
Stamf. ibid.& 23. lib. off. pl. 2. come. 316.  and the offendor shall forfeit his goods and lands to the king of whosoever the lands are holden. 
25. E. 3. c. 2. Stamf. ibid. 1. H. 6. 5. Stamf. lib. 2. ca. 37. &c. 40.& l. 3. c. 20 4. H. 7. 11. per Towns.  but he which hath estate in lands for term of life or for yeeres, shall forfeit his estate onely, 
Stamf. li. 3. c. 26.  and by the Statute of 26. H. 8. cap. 13. and 5. and 6. Ed. 6. cap. 11. tenant in tail shall forfeit his land if he offend in high treason, but no man shall forfeit lands which he hath in the right of an other, as in the right of his wife, or in the right of a Church 
5.& 6. E. 6 cap. 11. Stamf. lib. 3. c. 26  and with the land which a man forfeyteth, he shall forfeit his evidences which concern the land, 
49. H. 6. 15.  and if a man levy war against the King, and is slain in it, yet his land shall be forfeited, 
7. H. 4. 27. {per} Mark 34. E. 3. c. 12. 39. H. 6. c. 1 Stamf. l. 3. 29.  and in such case the wife of such offendor shall loose her dower, and his blood or lineage shall be corrupt, 
Stanf. l. 3. c. 19.  But such as clip, wash, round, or file money, are only to forfeit their lands during their life: 
5. Eli. c. 11.  but such offence causeth not corruption of blood, nor loss of dower.  Nomomath. 
Now time and order doth require that ye should speak of Homicide.   

The fouretenth Dialogue, of Homicide that is murder, manslaughter,& homicide by chance or misfortune.  NOmomath. 
Because the apt division of things giveth great light and ministereth exceeding help to the knowledge and understanding of them, I would therfore know Codicgn. how many kinds of homicide are set down in your Law.  Codicgn. 
Homicide in our Law, 

1 The several kinds of homicide by the civil law, and first murder is described.  
2 Manslaughter se defendendo by the civil Law.   is either the wilful killing of a man of set purpose, 
l. 1. in princ.& in§ diuus ff. ad l. Corn. de sicar.& l. 2. C. cod.  or else the killing of a man in the defence of his own person, as if I.N. should assault I.S. with a sword he may defend himself with a sword, and so avoid the injury, if otherwise he cannot eschew it: but if I.S. may fly from him without danger, then the Law bindeth him to fly, but if a man should so assault me, that he should drive me to a very narrow pinch, so that I cannot find a mean to escape with my life, in this case it is lawful for me manfully to defend myself, though it be with killing him, 
Iodoc. Danconderius in rerum carmin. prax. c. 78.& 79  and these sorts of manslaughter may be committed with club, 
in d.§ diuus l. 1. ff. ad leg. Corn. de sicar.  ston, sword, or dart, with arrows, launces, pertisanes, iauelius, or with guns, 
just. de pub. judic.§ Item lex Corn.  or a man may be killed with poison 
l. 3.§ 1 ff Ad Corn. de sicar.  or by precipitation& being thrown headlong from the top of some house, or some bridge, or some hill, 
3 The description of selfeslaughter by the civil Law  or some three, 
d. l. 1. ff ad leg. Corn. de sicar.  there is an other kind of homicide, which is termed homicidium sui ipsius when a man killeth himself, and such offenders are punished by our Law according to the quality of their mind, whereby they were moved: for if they kill themselves through grief or impatience 
G. de Bon. eorum qui mort. sibi consc.  of some infirmity, 
4 A diversity of killing a mans self by the civil Law  no punishment followeth their fact, but they are left to the tribunal of the Almighty judge of the quick& the dead: but if they kill themselves vpon any other cause their goods are confiscated, 
Authen. bona damnatorum C. de Bon. damnat. novel. 134 c. fin. ff. de jur. fisc.& C. de priuil. fisc. Tit. lit.  and their bodies though they be dead,& so impassable,& free from punishment, yet for the terror of them that live, they are thus ordered, 
5 The punishment of selfeslaughter by the civil Law  The body is drawn out of the house, wherein the man did kill himself, with ropes, not by the door, but through some hoal or pit made under the threshold of the door because it is unworthy to be brought out the same way, which the man whilst he lived, did use:& he is drawn by a horse to the place of punishment or shane, where he is hanged vpon a gibbet,& none may take the body down, but by the authority of the magistrate: 
Dāhouder. in prax. rer. criminal. c. 88.  and none may wear any mourning robe for such an offendor. 
l. liberorum§ Pomponius in versic. non solent. ff. de his qui notan. infamia.  The last kind of homicide, 
6 Homicide by casualty is described  is homicide per infortunium, or homicidium casuale, as if a Tiler with one of his tiles which he useth about his work, do hurt or kill one that passeth by, he is not to be punished for this hurt or fault, if he did give warning before in convenient time, 
Argum. l. cum quis l. si soluturus ff. de solut. l. 1 in princ.& l. de pupillo§ in plurium, ff. de now oper. nuntiat.  the like may be said of these which use bows, or crossbows, which lop trees, or cut thē down by the roote, if a man be slain thereby, 
l. si putator. ff. ad l Aquil. ff. item si putator, de l. Aquil.  so it is of them that ride a race, if they give warning,& so it is of Carmen or coachmen,& so it is of others, whilst they do such things as are permitted by law, yet such persons must sustain an arbitraty punishment, because so great a mischief ensueth, 
Damhorder ret. criminal. prax. cap. 85.  and so it is of others which throw suddenly staffs or stones, at birds or dogges, and by that means hurt or kill, a man, 
Damhorder ibid.  but yet God would haue man to be free from this fault, and therefore such offenders had Asyla, Temples of Mercy permitted unto them as things necessary for their absolution. 
Deuter. 19. ver. 5.   Anglonomop. 
It seemeth that wee make more kinds of Homicide then you, 
7 Ang. Taketh exception to the division of Homicide by the civil law.  for with us their is one kind of Homicide of malicious purpose which wee call murder, an other which is committed vpon the sudden in a heat& fury of mind, which we term manslaughter, a third which we call se defendendo, a fourth per infortunium, the fifth Homicide of a mans self, whereby the offendor is called Felo de se.  Nomom. 
Indeed Codicgn. you haue not as to me seemeth, comprehended in your division all the particular kinds of Homicide: for you seem under your first member, which is the wilful killing of a man of malice forethought, to comprehend manslaughter, which is done in the heat and fury of anger and sudden falling out.  Codicgn. 
Indeed so I did mean it, 
8 An other division of Homicide by the civil Law.  for our most compendious and complete division of Homicide is thus: either it is done destinato, or necessario, or casu destinato, when a man of malice preconceived doth kill himself or an other man, as Nero, Iudas, and others, which kind of manslaughter is impious, because the power of life& death is Gods and not ours, and therefore is not to be usurped by man, wherefore we haue a very good rule. Nemo membrorum svorum dominus est: 
l. liber homo ff. ad leg. Aquil& l. lex. corn.§ Constitutum ff. ad l. Corn. de ficar.  Necessario a man comitteth manslaugter, when he doth it in his own defence, and to beat back force by force, which kind of manslaughter being done by necessity, and not by will, deserveth pardon according to the saying: 
judice me, fraus est concessa repellere fraudem.  
Armaque in armatos sumere iura sinunt.  And it is a maxim in our Law: Quod quisque in tutelam corporis sui fecerit, jure fecisse existimatur: 
l. vt vim. ff. de inst.& jur.  Casu Homicide is committed, when a man killeth one not purposing that, but doing another thing as the Hebrews do report of Lamech, that meaning to strike a wild beast he killed Cain with his dart, 
joh. Wolph. in Comm. ad Deuteron. li. 2.  and so you may perceive that we comprehend that which you call murder, and that which you call man slaughter under that kind of homicide which is committed destinato.  Nomomat. 
I do rather perceive it, then approve it: wherefore I would haue you Anglonomophylax to show the difference betwixt these two kinds in their several natures,& what difference they hold from other kindes of Homicide, that so I may more easily understand wherein your laws agree or disagree, and likewise the reasons of the said accordance and disagreement.  Anglonomop. 
The difference of killing men voluntarily and inuoluntarily is very ancient. 
Genes. 9.& 4 Exod. 21. Deutren. 5. Leuit. 24. Numb. 35. Deutren. 19.  And Demosthones saith, 
8 The difference of killing men voluntarily& inuoluntarily is shewed to be ancient  that the Phaenicians did punnishe such as did voluntarily kill men with death, and with the loss of all that they had: but such as did unwillingly cause the death of a man they did pardon and forgive 
Demost. in orat. cont. Mid : But the difference betwixt murder and manslaughter hath not been heretofore much odened, or effectually stood vpon, which because it is large and of great compass in our Law, I will( God permitting me) by some cases make clear and apparent, and then descend to the description of the other kinds of Homicide. 
9 The definition of murder by the Common law  Murder is when a man killeth an other feloniously vpon malice forethought, 
Pl. come. 261  and it is not material whether he kill him, openly or secretly, or whether he that is slain bee an Englishman, or of other nation, if he live in this realm under the queens protection, 
Stamf. 18.  and he cannot haue the benefit of clergy and Sanctuary, 
22. H. 8. c. 1.  and there be two sorts of malice which are motives to this horrible act, 
10 Malice whereof murder cometh, is shewed to be two fold& diuers cases are put thereupon.  namely a malice implyed, and a malice expressed: malice implyed is when one killeth an other suddenly without any defence on the part of the other: malice expressed, when it is known that there is malice betwixt the parties: 
Crompt. Iu: P. 19.  I will illustrate both these several kinds with several cases, beginning first with malice implyed. A jailer had malice to a Recusant who was in his ward, because he suspected that he was too familiar with his wife, and after the prisoner purposed to go out of prison, as he went before for his disport, and the gaoler suddenly stroke the prisoner vpon the head, so that he fell to the ground, whereupon he dyed, and this was adiudged murder at the assizes at Chester: 
Cromp. Iu. P. 20  And if a thief rob an other man, and kill him, this is murder, though he did never see the man slain before, and though he had never inveterate malice against him: yet he had malice before the murder to this intent, that he would rather kill him then be disappointed of his purpose. 
come. 474  Two fought together of malice forethought, having purpose to kill, and a stranger came to part them and one of them killed him, this was felony in them both, and they both were executed because they had an intent the one of them to kill the other, and this act came originally of that: 
22. E. 3. Coron. 262.& Dyer 120  And if the Iustices of Peace with the sheriff come to suppress rioters, and one which attendeth vpon them is slain by one of the rioters, this is murder in him, and in all the other rioters which are present. 
Cro. I. P. 21.  And if a man without quarrel offered do kill one of the standards by, this is murder, 
Cro. I. P. 22.  proceeding from implyed malice, 
Lam. Eirenarch. 255.  Thus far of malice implyed: malice expressed may more easily appear unto you, as if a man bring an appeal of felony against B. and the said B. meeteth the plaintiff, and they quarrel together vpon the using of the said appeal, and fight, and B. killeth the plaintiff, this seemeth to be murder, 
Cro. I. P. 21.  and if a man be attrinted of murder he shall suffer pain of death, 
11 The punishment of murder by the Common law  and shall forfeit lands, and goods, and chattels: but manslaughter as it is in fact less heinous, so it is in punishment less grievous, 
12 The description of manslaughter by the Common Law.  for it is then committed when two or more fight together vpon the sudden without malice precedent, and the one of them killeth the other, in such case the offendor shall haue his clergy, 
Cromp. I. P. 23. come. 261.  but shall forfeit his goods, 
13 The punishment of manslaughter by the common law.  and if two do fight together without malice precedent, and after diuers blows given, the one of them flieth a great space from the other, and the other goeth into a house very near for a weapon, and pursueth incontinent, and killeth him that flieth, this is but manslaughter, because it was done in a continuing fury, 
Crompt. Iu. P. 23.  and two did fight together vpon the sudden without malice preconceived, and one cometh to part them, and the one of them which fighteth killeth him, this is manslaughter in him, because the fighting was an unlawful act: 
22. Ass. Coron. 180  but if they had fought together Ex maltiia precogitata, and the one of them had slain him, this had been felony in them both. 
22. E. 3. Cor̄ 266. Stamf. 16.  Manslaughter se defendendo is, 
14 Manslaughter se defendendo by the common law.  where two fight together vpon the sudden, and before a mortal wound on either party, the one flieth unto the wall, or to some other place, beyond which he cannot pass for the safeguard of his life, and the other pursueth him, and he which flieth killeth him that pursueth, this is manslaughter in his own defence, 
3. E. 3. Cor. 284.& 286.  and it is not material in this case which of them begun the affray, or which of them gave the first stroke 
Stamf. 15. , and the offendor in this case shall forfeit his goods 
4. H. 7. 2. 43. Ass pl. 3. 21. E. 3. 17. , 
16 Homicide by misadventure.  homicide by misadventure is no other then hath been described by Codicgn. for he hath recited out of the civil Law almost all the cases which we read in our Law books: and his distinction likewise is of force and effect with us: for if a man do an unlawful act, 
17 The punishment of it.  and any misadventure do happen vpon it, by which a man is slain, this is felony though it be not murder: and for every homicide by mischance a man shall forfeit his goods 
22. Ass. cor. 180. Stamf. lib. 1. c. 4. , likewise he that is a homicide of himself, 
18 Homicide of a mans self& the punishment of it.  is such as hath been before discovered by Codicgnost. and he by our Law shall forfeit his goods. 
Fitz. coron. 301. 362. 426.   Nomom. 
I pray you let me know this Codicgn. whether he that counseleth, commandeth, abetteth or assisteth a murderer, ought by your Law to be taken and censured as a murderer?  Codicgnost. 
Yes verily, for homicide is either consilij or operis, 
1 Homicide is shewed to be twofold in the civil Law consilij, and operis.  and therefore if a man counsel one to do a murder, who if the counsel had not been would haue done it, he that executeth the counsel, and he that giveth the counsel, are both in the eye of the Law murderers 
c. ficut dignum 1.§ qui vero de homicide Extr.& cap. fin. co. Tit. lib. 6.& l. qui servo. ff. de furem &c. Nullus ex consilio de regal. jur. in sixth. . But when it is done by commandement by persons executing the commandment, which otherwise would not haue done it, then the commander onely is accounted guilty of homicide 
l. 3.§ item versi. item qui author. ff. ad leg. Corn. de sicar. cap. fi. de homic. lib 6. l. In hoc judicio ff de seru. corrupt. , and if one lend one a sword to kill an other man or himself, he is guilty of homicide 
l. nihil inter est. ff. ad leg. Corn. de sicar. l. 15. qui opem. ff de furt.& in§ interdum quoque just. de oblige. quae ex quas delic. nascuntur. , and if a man be cooperant in the act, he is a principal offendor. 
Gloss c. sicut l. dignum§ illi vero verb. mors de homic extr.   Anglonomop. 

2 By the Common law the counselor& assister in murder are accounted principal offenders.  By our Law the counselor, commandor, or assistor are without any such difference or limitation as you haue made, guilty of homicide, and principal offenders: for all that be present, aiding, abetting, or comforting him that doth murder, are principal offenders though they give no stroke, for the stroke of him that smiteth and woundeth is the wounding and striking of all the others in Law 
4. H. 7. 18. Comm. 100. 3. E. 3. Coro. 309. 13. H. 7. 10 : and therefore they which come in the assembly or company of others into any place where any evil is done, be it homicide, robbery, or any other misdemeanour, shall be held principal offenders, though they stand apart, and do nothing 
2. E. 3. Inditem. 22. Stamf. 40. Comm. 475 3. E. 3. Cor. 314& 350. , but in these cases it is necessary that they be confederat in the fact for if they be not confederate, they shall bee punished by fine, and no otherwise 
E. 2. Coro. 395.& 293. , but if they levy hue and cry, and stretch out their hands to take the offenders they shall not be fined 
Stamf. 40 , and he which is within age shall not be fined in such case. 
14. H. 7. 31.   Nomom. 
I pray ye show me whether they that kill men by witchcraft, or make their bodies to languish and consume away, are punishable by death in your Law? for some be of opinion that there be no witches.  Codicgnost. 
They may as well think that there bee no divels, 
1 Homicide by witchcraft is described.  surely Europe is too full of such wicked wretches, which either by magical artes calling up damned spirits, or corrupting the elements, which God hath made for the use of this life, do work the destruction of many innocent persons, or else by acquainting themselves with familiar divels do effect the like mischief, 
1 The punishment of witches& magicians by the civil Law  and their iudgement in our law, because they are such strangers to nature, is, quod feralis bestia eos absumat 
l. multi. C. de malefic.& mathem. , and such as by Images of wax enchanted do cause the death of any man, if they be convicted and do confess the fault they are punished as is before said, but if they will not confess, their flesh it torn from the bone with nailes and with hooks 
l. fi excepta§ fi quis C. de malefic. , and not onely witches, 
3 They that haue asked counsel of wi●ches haue been in ancient time punished.  but even such as haue asked counsel of Witches for the remedy of diseases, haue been in former times punished. For Ammianus reporteth, that in the time of the sons of Constantine, and the other Emperors, which next succeeded them, If any man did wear about his neck any thing as a remedy of the fever rain, or any other infirmity, he was punished capitally as accessary to witchcraft 
Ammian. marcel. li. 19. : and he telleth in an other place that a certain simplo old woman, because shee was wont to cure fevers by a kind of enchantment, was put to death as guilty of witchcraft: and a young man in the bath putting his hands sometime to a marble ston, and sometime to his breast, and rehearsing withall, certain letters of the Alphabet, imagining this to be a good remedy against the pain of the stomach, was put to death by the sword. 
Ammia. l. 29.   Nomom. 
The Romans it seemeth were in this strangely opinionated: for the grecians& others did approve such medicines. Pericles did hold that diseases might be cured by hanging certain written books about the neck of the diseased 
Plutar. in Peric. . And Bion the Atheist was of the same opinion 
Diogen. Laert. in vit. Bion , the Indians( as Strabo testifieth) do account this the only physic 
Strab. li. 15 ,& Vallesias reporteth that charms haue been called remedies of Cato, Varro, Theophrastus, Serenus, Trallianus, and of many Physitians of Italy, Greece, and Arabia 
Valles. lib. de sa philos. . And ulpian sheweth that many haue affirmed unto him, that such charms and inchantmentes haue done them good 
l. 1.§ Medicos, ff. de extr. cogn. , and we know that there was a kind of exorcism or conjuration used in the Church, 
4 An objection is made of exorcism used in the Church.  whereby the divels were restrained from doing hurt unto men 
l. 6. C. de Ep.& clear. Alciat. lib. 2. parerg. c. 23. ,& Iosephus saith, that this was Salomons invention 
josep. lib. 8. antiquit. , wherefore me thinks they that use such things, or work any good effect by such things, should in no sort bee punished. For( as Apuleius saith) Nihil quod salutis causa fit, crimino sum est. 
Apulei. apolog. 1.   Canonologus, 
It may be that Codicgn. had rather beleeue the censures of roman Magistrates in matters of Iustice, then the opinions of Roman and grecian Philosophers in table talk and common speech. I know by good authority these things are condemned, and therefore it is said of such men and their medicines in the Canon. Quae alij scelera, isti remidia nominant 
c. Illud quod 26. q. 2. . And Tacitus clearly affirmeth that such things medicorum disciplina condemnat 
Tacit. lib. 1. histor. : And Plutarch calleth such practices Insanias 
Plutarch. in pericl. : and if Lucian be of any authority with you, he saith, Per verbula& incantationes sanitatem operari non credo 
Lucian. in philopseud. . Pliny likewise speaketh to the same purpose in these words Maximae quaestionis& semper incertae est, valiantne aliquid verba et incantamenta carminum in medendo: said viritim sapientissimi cuiusque respuit fides 
Plin. lib. 28. c 2. : As for these exorcisms heretofore used in the Church, Bodinus teacheth that the Prophets never used in their times any such matter 
Bodin lib. 3. daemon. , and he saith further, 
5 Answer is made to the aforesaid objection according to the opinion of Bodinus.  that the primitive Church never used them, and he disalloweth the testimony of Iosephus, and disproveth it in this point: but sithence the matter is so doubtful, I do not think that the Law-maker ought to punish the using and applying of charms, or such things, which are for that purpose hanged about the neck of the sick body, if they be innocently done and without mixture of magic or evil arte, with death: but it principally appertaineth to divines and preachers to extirpate such superstitions out of the hearts of men, and to teach them that it is irreligious,& against the glory of God, to go for remedy to such dumb things, and not to God himself, and that false is that saying of Apuleius, Nihil quod salutis causa fit criminosum est: for their is nothing subject to the use of man so good, but it may be abused: yet surely the laws ought not to extend their severity against this last recited fault, if no greater fault be joined with it.  Nomom. 
I am reasonably taught for this matter: but I pray you show me whether witches haue any such power as hath been before spoken of.  Codicgn. 

6 The great& strange power of w●tchcraft.  doubtless they haue, and that may be proved by innumerable authorities. Virgil saith, that they haue this power: Sistere aquam fluuijs,& vertere sydera retro 
Virgil. 4. Enedi. . And again. Carmina vel caelo possunt deducere lunam 
Virgil. in Pharm. . And Claudian affirmeth the like, Thessalidas patrijs lunare venenis incestare iubar. But most fully, most deeply, 
7 Lucan is commended for his ample disclosing of the detestable secrets of sorcery. & most exquisitely doth Lucan in his sixth book describe, and discourse of these things.  Nomomath. 
These are the frivolous imaginations of poets, which may lye for the whetstone.  Codicgn. 
But in many things, and doubtless in this, they do neither lye nor dally: for whereas virgil saith, Atque satas alio vidi traducere messes, this is no flying fancy, but the sage and grave determination of the makers of the laws of the twelve Tables, where it is said in the old latin, 
8 The laws of the 12. tables do condemn witchcraft.  
Qui alienas fruges excantauerit quiue alienam segetem pellexerit.  Quei alienas fruces excantassit queiue alienam secetem pelexerit: and therefore vain is the surmise of Seneca when he said of such matters, 
9 Seneca his opinion of charms and enchantments is disliked.  Rudis adhuc antiquitas& attrahi imbres cantibus,& repelli credebat: quorum nihil fieri posse tam palam est, vt huius rei causa nullius Philosophi schola intranda sit 
Seneca li. 4. naturali quaest. c. 7. . Whom S. Augustine doth judiciously confute in his eight book De civitate Dei, 
10 S. August. confuteth the opinion of Seneca  where he absolutely affirmeth, Haec maleficia generi humano perniciosa esse non dubium est 
D. Aug. li. de civit. dei 8. c. 19 . And Pausania a credible writer witnesseth, that he hath seen men, 
11 It is likewise disproved by pausania.  Qui sacris& incantamentis grandinem auerterent. 
Pausan. li. 2.   Nomomat. 
If such hurt be done, it is done by the divell, and the wicked spirits his ministers, which suggest such things to silly old women,& are ready to perform them at their command: but what fault can be justly imputed to these women.  Canonol. 
Surely their offence is very great, 
12 Witches are proved to be apostates, and in what maner they become apostates  for they are most abominable apostates, and workers of extreme mischief, they haue denied Christ& vowed themselves to the divell, which maner of vow is done either secretly or expressly: secretly, when one witch or conjuror voweth with an other conjuror or witch, that in consideration that A. hath promised to B. that he shall do great and marvelous things, as namely that he shall know future things, and do other things, which others shall not be able to do, B. therefore promiseth to A. that therefore he will renounce the catholic faith, that he will obstinately despise the holy Sacraments, that he will with all his strength& power worship& cleave to his master, and will give to him all kind of adoration under the form of idols:& this is called a secret protestation, because it is not done to the devil himself but to his seruant 
c qui sine saluatore 26 q. 2. Sum. confession. co. Tit. q. 3.& 6.& q. 10 in sin. , the other protestation is called the express protestation and it is double, either private, or solemn& public, the solemn or public is that, which is don to the devil sitting in the throne of his pride, to receive the general assemblies of all witches, conjurers,& enchanters, as is very lively and wittily described by Torquato Tasso in his jerusalem &c. 
Tasso Gieru. liber. Cant. 4.   

Siede Pluton nel mezo, e con la destra.  
Sostien lo scettro ruuido, e pesante;  
Ne tanto scoglio in mar, ne rupe al pestra,  
Ne pure Calpe s'inalxa, o'l magno Atlante,  
Ch'anzi lui non paresse vn picciol colle,  
Si la grand front, e le grand corna estolle.   

Horrida maesta nel fiero aspetto  
terror accresce, e piu superbo il rend,  
Rosseggian gli occhi, e di veneno infetto,  
Come infausta Cometa il guardo splende.  
Gl'inuolue il mento, e sù l'irsuto petto  
Hispida, e folta la grand barba scende.  
E in gutsa di uoragine profunda.  
S' apre la bocca d'atro sangue immonda &c.   Nomom. 
At what place and in what time is this wickedness done?  Canon. 
It is done in woddie places, or in caues under the earth, which are far remote& distante from the places of mens conversation, such dark and shadowed groves and corners, as are very fully portrayted by Lucan. 
Lucan li. 3.   
Lucus erat longo nunquam violatus ab aeuo.  
Obscurum cingens connexis aera ramis,  
Omnisque humanis lustrata cruoribus orbos:  
Illis& volucres metuunt insistere ramis  
Et lustris recubare ferae, &c.  
In such desolate places, or in ruinated castles this mischief is celebrated, and commonly it is don in the darkness of a most tempestuous night 
c. Episcopi 26. q. 5. , for the divell falling from Paradise fell into extreme darkness,& by defect of grace delighteth in darkness 
T. Aquinas in tractat. 44. question 16 artic. 1. est in Tit. de daemon. , so that all the works that proceed from him are black, horrible, and full of darkness, clean contrary to the works of our saviour Christ, which he did in the open light, for the glorifying of his father and the edifying of his Church.  Nomomat. 
Yet my assertion remaineth firm, that all the evils whereof you haue before spoken are done by the devil, and not by the witch.  Canonologus, 
They are done by the witch cooperating with the divell, 
13 It is proved that the bodies of witches do work with their minds in lewd ente●prises.  who will not do any such hurt without their command, for surely the bewitching of mens bodies must needs be accounted their own work. The bodies of aged persons are impure, which when they wax cankered in malice, they use their very breath and their sight being apt for contagion, and by the divell whetted for such purpose, to the vexation and destruction of others: for if they which are troubled with the disease of the eyes called Ophthalmia, do infect others that look earnestly vpon them: is it any marvel that these wicked treatures having both bodies and mindes in a higher degree corrupted, should work both these& greater mischiefs? but their malice doth especially exercise itself vpon the weak& tender bodies of children and young women, which are most subject to the impression of the air, that is infected by them, as Heliodorus plainly sheweth 
Heliod. Ethiopic. lib. 3. , and that it hath been so thought in ancient time, may appear by Theocritus speaking of the remedy which was wont to be used against such witchcraft 
Theocrit. eidyl. 6.& 7. , and again they deserve severely to be punished, not onely for vowing themselves to the divell, but also for mingling themselves in the company of wicked spirits, which must needs infect their bodies and souls, and so make them apt instruments for the hurting of others.  Nomom. 
I do not think, 
14 Alciate his opinion touching the meeting of witches amongst themselves, and the meeting of the diver is urged.  that is possible to be done, which is commonly reported of witches, dwelling in several places, meeting one an other and meeting likewise the divell, and that opinion holdeth Alciat, 
Alciat. lib. 8. parerg. cap. 22.  and some other in these daies: wherefore I see no reason that they should be punished for it.  Canonologus, 
That is both true and possible, 
15 Alciate his said opinion is confronted by the authority of Bodinus.  as against Alciat, and other writers strangely conceited in this point, Bodinus hath largely and learnedly disputed. Alciat denieth it to be possible, that naturally bodies, which are said to meet in places far distant, should at the naming of Iesus vanish into the air, and be carried swiftly and invisibly thether, but this is possible enough: For if the spirits can not in a moment withdraw the sight of things, surely they can do very little: for this is many ways done, and iuggelers and professors of feats can perform it, and as to the swift transporting of them to remote places, Bodinus reasoneth well; that if the Spirit of the eight sphere of the heauens, do move a thing of so great compass and quantity in so short a space, that in one hour it passeth above a hundred times an hundred miles, why may not a wicked spirit carry the small bodies of such witches in the minute of an hour, the space of a hundred or two hundred miles: yet I do not think it possible which some affirm, that the bodies of such witches may pierce through a chink or riff of a wall( for the nature of the body cannot be altered) but this seemeth rather to be an illusion of the divell offered to witches: but what of this? suppose that a witch do confess unto a Magistrate, that she went in by a riff of the wall to kill a child, which shee killed, because it is not possible that the witch should pass through such a narrow creuise, shall the Magistrate therefore absolve the witch, as guiltless of the childs death? Nay rather let him divide the matter, and sever that which is impossible, from that which may be, namely the passing through the riff of the wall, from the killing of the child: for it may bee, that in truth the divell brought her in at the door to kill the child, though he made it seem to her that she came in at a chink of the wall: but surely if there were no other fault in witches, then the renouncing of God, and the abiuring of the Sacraments; yet this being in itself consummat apostasy, doth deserve extreme punishment, and whosoever thinketh that witches, because for the most part, they be sottish, old, and doting, are very easily deceived, and therefore ought to bee spared, he is in a great error, for malice driveth them to desire that, which by the divels means they compass; when they haue obtained it, their froward nature doth ioy in it, and the divell for the most part leaveth them, before they leave him.  Nomomat. 
Indeed so it seemeth: for when they fall into the hands of Iustice, and bee cast into close prison, the divell commonly practiseth no more feats for them, but suffereth them to sustain the punishment of law without any intermeddling for them: but I haue much wondered what should be the cause of this.  Canonol. 
That is done for two causes. First, 
16 A double reason is alleged wherefore the devil worketh not for witches after that they be imprisoned.  because the divell seeketh nothing more desirously then the gain of their souls: for when he thinketh that the soul is wholly brought under his power, he expecteth for nothing so greedily, as the departure of the soul from the body, that he may torment the soul, which before the death of the party he doth retinere subpacto, and he not only laboureth, but hasteneth his death as much as he can, least repentance( God is the God of mercy) do deliver the miserable caitiff out of the snare of damnation: 
c. Nec mirum 26 q. 5. D. Augustin. lib. 3. de Trin. 10. de civit. dei. Thom̄ Aquin. in tractat. 44. primae parts quest. 5. in Tit. de mira.  an other reason is wherefore they being imprisoned cannot escape though the divell would deliver them out of prison, is because the Iustice of almighty God will not suffer the divell to exercise his natural power for them: for if he should permit him, God might perhaps seem to weak& shallow consciences, to haue cast of the care of humane affairs, and of doing Iustice: wherefore for his truth and glory he will not suffer it. 
D. Aug. d. lib. 10. de civit. dei& T. Aqu. in d. tract. 44. d. q. 5.   Nomom. 
You haue spoken sufficiently of witches, and their lewd practices, of their punishment, and danger of their souls. Now I would haue you to speak of conjuration and necromancy, whether the practices of it are able to work such effects, as is commonly reported, and how by your Law they be punishable.  Canonol. 

17 That necromancy and magic was used in ancient time.  This wickedness hath been in ancient times practised. Suetonius in the life of Nero, saith, Facto per magos sacro euocare manes tentauit 
Sueton. in Neron. c. 34. . And Tacitus maketh mention of a certain young man misled to this naughtiness, Iuuenem improuidum& facilem inanibus, ad Chaldaeorum promissa magorum sacra, somniorum etiam interpretes impulit, tentatus vt infernas umbras carminibus eliceret. 
Tacit. lib. 2. Annal.   Nomom. 
I pray you tell me when there be such apparitions in the persons of the dead, whether are they divels or dead mens bodies that are so raised up.  Canon. 
It is an easy matter to resolve this question, but a hard matter to discourse of it: But shortly to answer it, I think they be divels which resemble men that are dead.  Nomom. 

18 A discourse of the apparition in the likeness of samuel.  Yet in the book of Ecclesiasticus there is speech made of the body of Samuel raised by the witch of Endor. 
Eccles. ca. 46   Canonologus, 
But that book is not caconical Scripture.  Nomom. 
But a man may reason out of canonical Scripture that it was no divell which appeared to Saul in the likeness of Samuel, because the divell would not use such holy speeches as are attributed to Samuel, in the first book of Samuel, which is caconical Scripture. 
1. Sam. c. 28.   Canonologus, 
What marvel is that? when the divell can transform himself into an Angel of light? and so he did deliver true testimony of Christ 
mat. 8 Mar. 1. Luck. 4. , though to a false and evil purpose, and likewise of paul 
Act. 16. , but holy Samuel would not haue suffered any such adoration, as is expressed in that Scripture: and therefore Tremellius and Iunius do rightly comment vpon that place, that it is not in the power of the divell, nor of the witch his seruant, to draw again into the world just men, but that it was a crafty& false pretence of the devil to make men think that the true worshippers of God are in his hands after their death.  Nomomat. 
You haue almost made me of your opinion. But tel me Codicgnost. what punishment hath your Law ordained for necromancers and conjurers.  Codicgn. 
They are by our law either executed vpon a gibbet, 
19 The punishment of necromancers and conjurers by the civil Law.  or thrown out to devouring beasts. 
Paulus lib. 5 Tit. 23.   Anglonomophyl. 
By a Statut made in the fifth year of the fortunate reign of our sovereign Lady queen Elizabeth, 
20 The punishment of necromancers and witches by Statut●  It is enacted that if any man do use any invocation or conjuration of evil spirits for any cause, or haue used any witchcraft, enchantment, charming,& sorcery, whereby any person is slain or destroyed, this is felony in them, their aydors, and counsellors,& they shall lose clergy, and sanctuary: and if any do languish in his body by such witchcraft, enchantment, or sorcery, the offendor convicted shall suffer a yeeres imprisonment, and shall stand on the pillory in some market town in the said county where the said offence is committed, on the market day once in every quarter of that year, and this offence if it be committed the second time, is made felony. 
5. El. cap. 1●.   Canon. 

21. The punishment of conjurers by the Canon law.  It is an excellent law, and worthy of so noble a Lawmaker: by our law, which stretcheth not to the taking of mans life, such offenders are shaven& made bald on the head 
26. q. 1. ca. de benedicto ,& they wear a mitre on their heads, wherein their offence is in great letters painted 
ca. episcopi. ibid. ,& they are set vpon a ladder whilst the people go to hear divine service 
In d. c. Episcopi.& ca. de benedicto. & so they are cast out of the parish 
26. q. ca. Episcopi. ,& diocese 
ca. Episcopi,& ca. de benedict. :& if they haue any office or benefice, they are deprived of it 
Gloss. fin. in ca. 1. de sorti. Extra c non oportet. 26. q. 5. ,& if they be of the clergy& not benificed, they are disgraded. 
Cap. Admonendi 26. q. 7. de haere.   Nomomat. 
You haue not yet shewed unto me, whether if a woman do procure a live child to be killed in her womb, or causeth it as soon as it hath received life to be cast out of her womb being by that mean an abortive,& so is delivered of it, whether the woman in this case be guilty of homicide or no by your laws?  Canon. 

1. Homicide committed by the Canon law by proring the untimely birth of a child if death do ensue.  Surely by our law, if any woman without malice or evil conveyance do bring forth an abortive child which hath received life& is born before his due time& it dieth, the woman is accounted homicida occasionaliter. 
ca. quod vero. &c. Moses 23. q. 2.& ca. si expositus. 87. Dist.   Codicgn. 

2 The civil law punisheth such offence whether the child haue received life or no.  Our law punisheth the woman whether the child hath received life or no, if it be don of malice& evil meaning, for though the physicians do make a distinction,& several degrees of that which is conceived in a womans womb: as namely, first there must be a thing engendered: the next degree is a thing that is increased in the womb: the third degree is a thing formed or delineated like to a man: the fourth, a child or infant: yet our law punisheth vndistinctly and without difference, the immature eiecting of any of these out of the womb:& the reason is for the onely hope& possibility of a child that may be born 
l. Cicero. de paen. ff.& l. dius. ff. de extra second. crim. gloss. in ca si aliquis de homicide. Extr. l. si mulierem. Ad l. Cor. de sicar. ff. ,& therfore with us such things as are don for the hindering of the conception of a child, are punished 
Paul●s lib. 5 sent. Tit. 23.& l. 38.§ qui abortionis de paen. ,& that worthily, because it is done to the injury of nature,& in contempt of the most high God, who hath said Crescite et multiplicamini, and that by no other mean, then by continual generation of mankind: howsoever there be some, of whom Victor maketh mention, which think that the woman committeth no fault in this act 
Pet. Victor. lib. 27. var. lect. c. 2.  but as to the punishment of this fault in our law, if it be done for the gain of money, the law inflicteth punishment of death, if through hatred or malice, with exile for a certain time. 
d. l. Cicer.& d. l diuus.   Angl. 
In Bractons time it seemeth that our law did in this point somewhat nearly agree with yours: for he hath these words, 
3 That though in Bractons time the common law did agree with the civil& canon laws in the punishing of aborti●ments, yet now there is no such punishment by the common law  Si sit aliquis qui mulierem pragnantem percusserit, vel ei venenum dederit per qd fecerit abortiuum, si puerperium iam formatam, velanimatum fuerit, et maxim, si animatum, facit homicidium 
Bract. lib. 2. : but now the law is altered: for by the law now in force, homicide cannot be committed, unless the thing slain be in rerum natura●& therfore if a man kill an infant in his mothers womb, this is not felony, neither shall he forfeit any thing, because it cannot be certainly known whether the infant dyed by the stroke or no. 
3. Ass. pl. 2. 22. Ass. pl. 44. 1. E. 3. 24. Bri●. 45.    

The fifteenth Dialogue, of Theft, burglary, and robbery.  NOmomat. 
Time now requireth that ye should deliver your opinions of these crimes which are against the good estate of man, as theft, burglary,& robbery,& because theft is either single as petty larceny,& the sole act of taking away feloniously a mans goods: or else compounded& mixed with other wrongful acts, as when burglary& robbery are committed, therefore first I would haue you to speak of the former,& after of the latter: wherefore show me first Codicgn. what is accounted petty larceny or pilfering the every in your law, and how it is to be punished.  Codicgn. 
I think it fittest by your favour, to declare first what theft in general is,& then to discourse of the particular kinds of it as you haue proposed them.  Nomomat. 
I like your course well, I pray you therefore proceed.  Codicgn. 

1 The definition of theft by the civil law.  Theft is thus defined in our Law:( A fraudulent contrectation of an other mans corporal movable goods, which is don against the will of the owner, with a mind to gain either by the things stolen, 
2 Wherefore the word( fraudulent) is used in the definition of theft.  or by the possession of them, 
ff. de paen. l. 1. in fi.  or by the use of them) a and this word( fraudulent) is therefore used in the definition, because if a man take away an other mans goods as thinking him to be the owner that biddeth him take them, or mistaking the goods which the owner appointed him to take, he is not in this case guilty of theft, 
justi. vi. bon. rapt.§. ita tamen.  because neither the contrectation onely, nor the fraud only doth make a thief, 
Arg. d. l. 1.§. ind sola.  By the imperial law, 
3 How petty the every is punished by the civil law.  if a man do steal any thing worth v.s. or above, he shall be hanged,& if it be of a less value then he shall be whipped, 
c. 1.§ si quis quinque solidos de Feudis:& glos. in§.& iudican Authent. de defence. civitat glos. in l. fin.& ibi Alexan. ff. de in ius vocand. glos. in§. fin. in fin. instit. de pen. temere litigant.  but if he commit the second time, he is punished with the cutting off of one of his ears, or of one of his hands:& if he commit it the third time he is to be hanged, 
Authen. said novo jure C. de seru. fug.& Authen. vt nul. iud.§. quia vero nos oport. & the first time he is called fur: the second time consuetus fur: the third time famosus fur: 
d. Authent. said novo jure.  and he that stealeth a sheep, a goat, or a swine, is less punished then he that stealeth an horse or an ox: for he may be whipped if he be of a servile condition: 
ff. de paen. l. in juramentum.  or if he be a freeman he may be banished for a certain time: 
l. 1. ff. De abigeis.  but he that stealeth a flock, 
4 How the stealing of things of greater value is punished by the civil law.  as ten sheep or four swine: or he that stealeth an horse or an ox shall be adiudged to perpetual banishment. 
l. 1.§. quanquam ff. eo.   Anglon. 
By our law it is felony, 
5 What is felony by the common law,& what is petty  if a man steal above the value of xij. d. but if it do not exceed the value of xij. d. it is then petty larceny, for the which the party shall haue imprisonment according to the discretion of the Iustices, 
22. ass. p. 39. si foit est felony, ideo cest error  but as to the stealing of lesser or greater things which bee above the value of xij. d. 
Stamf. lib. 1. c. 15. Cor. 178.  we haue no difference of iudgement or punishment in our law.  Nomom. 
Declare I pray you whether these that receive& favor theefes, are not guilty of theft by your laws, and punishable as theeues.  Codicgnostes, 

1 receivers and theeues haue the like punishment in the civil Law, but yet with many diuercities and limitations.  Because these receiuors are a lewd sort of men, without whom malefactors cannot long be unknown, therefore our Law inflicteth vpon them& the others which commit theft, the like punishment, 
l. 1. C. de his qui latron. vel aliis crim. reos occultant.  but if a man do not receive thē but do gainsay or refuse to offer unto the trial& iudgment of law, such offenders which do lurk in his grange or in his manor, if he be personally resiant, and do keep house there, he for this fact shal forfeit his grange or manor if he haue an inheritance in it, but if he haue only estate for yeres or at will, he shal be punished with perpetual exile: 
l. fin. in fin. eod. & they shal in both cases forfeit their goods, 
l. 1. cod.  but that this matter may more clearly appear unto you, is is good to observe that if a man either keepeth the thief in his house, grang, or manor, not knowing him to be a thief, or knowing him to haue committed theft: in the first case he shall not incur the aforesaid forfeiture, unless he refuse to yield up the thief into the hand of Iustice, when he is pursued: 
l. 1. eod. in versi. vel offer.& l. requirendi, C. de serui● fugit.  but if the owner of the house or grang &c. do know that a thief lurketh within the precincts of his house or grang &c. then he is either a thief simply, or a thief compositiue, as a robber by the high way, or a burglarer if he be a thief simply, he that hideth him, must sustain the same punishment that the thief himself, 
d. l. C. de his qui latron.  which punishment is sometime weighed by the quality of the person, by the greatness of offences& by the multitude of offences iterated as before hath been shewed: but if he whom he hideth, haue committed robbery or burglary, of what estate soever he be, and though it were the first offence, both in the thief& in the favourer, yet either of them shal sustain the like punishment: 
d. l. 1. C. de his qui latran.& l. 1.§ in par. ff de receptat.  but here an other distinction is to be used, for either he favoured the thief, or the theft: if he favor the theft he shall haue equal punishment with the thief, 
l. secunda.§ non tantum ff. de incend. ruin. naufrag.  but if he favor not the theft, but only the person of the thief, then he is punishable by the same Law, but not by the same pain, for then his punishment is arbitrary, and left wholly to the discretion of the judge, 
l. 1. in fin. ff. de receptat. & in the very same state are they, which when they may apprehended such malefactors do either for lucre, or for part of the things stolen let them go. 
d. l. 1. ff. eo.   Canonologus, 
By our Canon Law, 
2 How the receiuors of heretics and other offenders are punished by the Canon law.  they that are receiuors of heretics are excommunicated, and are accursed with the highest degree of malediction,& when they are dead, Christian burial is to be denied unto thē, 
ca. sicut ait. de heretic. Extra.  But this is to be understood of such receiuors as favor the person but not the heresy, for they are punished by the same punishment which our Law doth appoint for the heretics themselves, 
ca. 2. de. haere. lib. 6.  but in other crimes which are not heresies, our law useth this distinction: either the receiuors are publicly defamed, or not: if they be publicly defamed, they are punished as the offenders themselves are punishable by our law, but if not publicly defamed, then they are punished with a milder punishment. 
Gloss. in ca. 1 sup. verb. receptauerit de hon tic. li. 6 an. cor. quae habentur, in ca. cum non ab homi. de judic. in cap. tuae. de paen.& in ca fin de furt. Exir.   Anglomophyl. 
Our law punisheth the receiuors of felons, with great and rigorous severity, 
3 How receiuors of felons are punished by the common law,& who be accounted receiuors  and without respect of the quality and circumstance of the persons: and if goods be stolen and I.S. knowing they be stolen receiveth them, in this case, though he receive the goods onely, and not the fellow himself, yet he is accessory to the felony, 
3. E. 6. c. 24& 27. El. per Wind. just. al Ass. al Staff. Cromp. I. P. 37 Stamf. 43.  but in case of high treason there be no accessaries, but all be principal, 
3. H. 7. 9.  But otherwise it is in case of petty treason: 
Stamf. 40.  but in high treason as well the commanders as the assistors, abettors, and receiuors, knowing thereof are principal, 
Exposit. termin. leg. fol. 4.  If a man receive one that is attainted of felony by outlawry in the same County &c. he is accessary to the felony, because the outlawry is a matter of record, of which every one ought to take notice, 
Stamf 96. Dyer 355.  but the Law would be otherwise, if he should receive him in an other County, 
12. E. 2. Cor. 377.  and the reason wherefore the receiuors and accessories should be punished, as well as the principal offenders, Lucan wittily sheweth in the person of one of his rebellious captaines: 
Rheni mihi Caesar ad vndas  
Dux erat, hic socius, facinus quos inquinat, aequat.   Nomom. 
Now I pray you proceed and open unto me the offence of robbery, how it is in your laws and how it is to be punished.  Codicgn. 

1 The d scription of robbery by the civil Law  Robbery is committed, when a man by force bereaveth an other of his goods, lying in await in high ways and secret paths, 
2 The punishment of robbery by the said law.  in woods, in heaths, and in other places removed from the sight and testimony of men: for this, the offenders head shall be cut off with a sword, and he shall forfeit his goods, and his body shall be laid vpon a wheel, unto which are fastened the boughs of these trees, under which the robbery was committed, as the witnesses of the crime, 
l. 1. C. de hi● qui latron. occult.& l. 1. ff. de receptato. & he that doth witting and willingly receive such felons, is no less capitally punished then they. 
d. l. 1. ff. de receipt.   Canonol. 
This crime is so odious in our Law, 
3 The punishment of robbery by the Canon law.  that it suffereth not Temples to be sanctuaries, or places of protection to such offenders. 
c. inter alia Ext. de immu. Eccles.   Anglon. 
By our Law, 
4 The description of robbery according to the Common Law.  robbery is then committed, when a man taketh any thing from the person of an other man feloniously, though it be but of the value of a penny, yet he shall be hanged: 
22. Aff. pl. 55 31. H. 6. 16. & if a man do threaten one to deliver his purse incontinent, and if he will not that he will kill him whereupon he delivereth it presently, this is robbery as well as that, where he taketh it from a mans person by force: 
Stamf. 27.  and therefore the case was that two did lay hold on a man, and did make him swear vpon a book that he would bring unto them xx. li. by force whereof he brought unto them xx. li. and they took it, this is robbery, for it must bee intended to bee done by force of the threatening,& against his will, 
44. E. 3. 14 4. H. 4. 3.  but where a thief taketh xl. s. from an other man by the high way, without assaulting him, and putting him in fear of losing his life, this is not robbery, but he shall be put to his clergy. 
5. Eliz. 224. Dyer   Nomomath. 
Now I would know somewhat of the offence which is commonly called Burglary or breaking of houses in the night time,& stealing things out of them, and how it is to be punished.  Codicgnost. 
They which break into any mans house in the night time with purpose to kill, 
1 What kind of house breach s capital in the civil law.  if any man be within the house that will resist their violence, are accounted in our Law famous theefes and are punished capitally. 
l. Capitallium§ Famosos ff. de poenis.   Anglon. 

2 The definition of burglary by the Common law.  burglary is where any man in time of peace,& in the night time, doth break any dwelling house, Church, walls, Towers, or gates, to commit felony there, and he entereth, though he carry nothing away, yet this is burglary, and the offendor shall be hanged. 
22. off pl. 95& 39. Stam. 30. Brit. 17. Dy. 99. 18. Eliz. cap. 6.   Nomom. 
I give ye great thanks for your pains bestowed in the cleared of these doubts, which I moved unto you: I will not trouble you further in these matters; accounting myself for your travail so long continued, to be greatly beholden, and very much bound in all dutiful kindness unto ye.  
FINIS.   

A Table of the Sections or divisions of the principal points, matters, and questions which are handled in every Dialogue.  

The divisions and principal contents of the first Dialogue, of Contracts.  
The first division. 1. THe ground of contracts. 2. The contracts of infants, persons distracted of their wits, and religious persons, whether and how far forth they be good. 3. Monks are absolutely prohibited by the civil law to make any contract: Infants are disabled with a certain qualification. 4. That by the common Law priors under the obedience of a sovereign, and which were datife and reuoueable, could not implead or be impleaded without their sovereign, unless it were by special custom. 5. The same Law was of the Knights of S. John of jerusalem. 6. The infants contract for his meat, apparel, and necessaries is good, if he be of the age of 14. yeeres. 7. That which the infant doth without actual livery, may be avoyded by action without entry or seizure, but that which he doth by actual livery, cannot be avoyded without entry or seizure.  
The 2. division. 1. Whether the contract of the seruant, shall be accounted in Law the contract of the master. 2. That according to the common law, the master shall be bound by the contract of a known seruant if the thing marchandised be come to his use,& he shal be bound by the contract of his factor, though the goods never come to his possession. 3. The act of a mans attorney or his general receiver, doth not bind the master without special warrant.  
The 3. division. 1. Whether the wives contract made in the behalf of the husband, will bind the husband. 2. That by the common law, an action of debt brought vpon a contract made by the wife for the behoof of the husband, must be brought only against the husband without naming the wife. 3. That by the civil law the husband is in no sort to be charged by the contract of his wife.  
The 4. division. 1. How contracts may stand or fall by their material causes, or the defect of them.  
The 5. division. 1. Some contracts are ordered by the Law of Nations. 2. An ambassador may according to the civil law be impleaded by the Law of Nations for a contract made whilst he is ambassador.  
The 6. division. 1. Whether contracts made with pirates, or robbers in the high way be good in law. 2 That pirates& robbers are not to haue advantage of law in matters of contract. 3. That D. Hotoman erreth greatly in maintaining that pirates& robbers may lawfully contract.  
The 7. division. 1. That by the common law a consideration is the proper material cause of a contract,& that it may be expressed or implied. 2. That a contract is not good without money paid in hand, or a certain day limited for the payment.  
The 8. division. 1. Whether the defect of form do destroy the contract. 2. That solemnity& concurrence of circumstances is required in contracts by the civil law, 3. That matrimonial contracts if there be no assumpsit in them, are to be divided by the ecclesiastical law if there be an assumpsit by the Common law.   

The divisions and principal contents of the second Dialogue, of gifts and grants.  
The first division. 1. WHat things may be given or granted. 2. That all things that lie in commerce, and may be received, may be given. 3. That things ecclesiastical, though they be not consecrate, cannot regularly be granted. 4. That if an Abbot did alien lands given in Frankalmoign to his house, the donor might haue a writ contra formam collationis.  
The 2. division. 1. The diuers kinds of gifts, some being free,& some compensatorie. 2. What is wrought by the queens grant ex mero motu. 3. What is wrought by her majesties grant, by of informamur, &c. 4. Whether vpon a false consideration expressed, an use shall be raised in a common persons case. 5. That a consideration may be averred, which is not repugnant to the use expressed. 6. That an use may be altered by a consideration not valuable.  
The 3. division. 1. In what cases grants shall be taken most beneficially for the grantee. 2. That a grant noncerteyn must be taken most strongly against the grantor. 3. That a grant may be good in part, and for parcel not. 4. How the queens grants and licences shall be construed and interpnted. 5. A grant is not to be favoured contrary to the manifest sense of the words.  
The 4. division. 1. That by the Common law a grant that is not good at the first may not be made good by matter ex post facto, nor by the civil law.  
The 5. division. 1. Whether a tenant at will may grant over his estate. 2. That the estate of the tenant at will is in maner no estate.   

The divisions and principal contents of the third Dialogue, of bargains and Sales.  
The first division. 1. WHat things are forbidded to be sold. 2. That by the Canon law things consecrate,& religious, may not be sold 3. That poisons by the civil law are forbidden to be sold. 4. That there be some poisons which be medicinable and profitable, and the prohibition extendeth not to these. 5. That some poisons are medicinable alone, some with the mixture of other things. 6. what things are forbidden to be sold by the common law.  
The 2. division. 1. Where a thing was not sold at the first, and where it was sold but the sale was defeasible vpon condition. 2. A difference betwixt a perfect sale, and a sale to be perfited vpon a condition performed. 3. That a proviso though it be placed amongst covenants, may defeat a bargain and sale. 4. That where a bargain and sale is perfect, but defeasible vpon condition, the vendee shal take the profits till the condition be performed.  
The 3. division. 1. When no day is limited for the payment of a sum of money, what time the Lawe will require. 2. In such case the party charged with the payment, shall by the civil draw haue threescore day. 3. That by the Common lawe when no day is limited, the money is presently due, yet in some cases by some authority the discretion of the Iudges is to limit a time. 4. The definition of time according to the opinion of Aristotle.  
The 4. division. 1. That a bargain and sale may be avoyded by the defect of some substantial thing belonging to the act. 2. That fraud and deceit in the contract by the civil law doth defeat the contract. 3. A difference where the default of the thing sold is Latens or Patens. 4. That whether the default be Latens or Patens, if the bargainor do warrant the thing sold to be without fault, he is bound by the warranty by the civil law. 5. That bargains and sales, matters in writing and obligatory, may be avoyded by alleging that they were made or done per minas or by duresse. 6. That by the common law a warranty made vpon a bargain and sale doth bind, otherwise it is, if the warranty be made after the bargain be concluded. 7. That the warranting of a thing which is evident to the sense, is no cause to bring a writ of deceit by the Common law.  
The 5. division. 1. That by the common law the bargain and sale, or the grant of the profits of land, is the grant of the land itself. 2. That by the civil law a man may grant and demise the use of a thing, and yet not grant the thing itself.  
The 6. division. 1. When a man selleth land wherein treasure is hidded, and the vendor knoweth not of it, whether the vendee shall haue the treasure. 2. How this word( treasure) is taken in the civil law. 3. That by the civil law, money and other things necessary to the common use of this life are forbidden to be hidden& butted in the ground. 4. Plato his superstitious opinion of things hidden in the earth. 5. How the civil law doth order& dispose of treasure. 6. What the Common law doth determine of treasure.   

The divisions and principal contents of the fourth Dialogue, of countries, and services.  
The first division. 1. THe description of a signory by the civil law. 2. By the Canon law. 3. Likewise by the Common law.  
The 2. division. 1. What homage is, and how it is to be performed by the common law. 2. That homage hath been practised in ancient time.  
The 3. division. 1. What a Manor is, and whereof it consisteth. 2. The original of a Manor.  
The 4. division. 1. Statutes made for the prseruation of countries& Manors.  
The 5. division. 1. Fealty is the most general service in the Common law. 2. In the civil law. 3. That by the civil law, the Common law,& the Canon law, a religious man ought to do fealty.  
The 6. division. 1. The diuers kinds of services in the civil law,& their definitions. 2. The diuers kinds of services in the Common law,& their definitions. 3. The original of usage,& the nature thereof. 4. The tenor whereby a man holdeth of an honor or manor is described, and by examples illustrated. 5. certain honors which be not of the ancientnesse of the Crown. 6. Some honors which be annexed to the crown.  
The 7. division. 1. Whether one within age be compellable by Law to do all manner of service either by himself, or some other. 2. A diversity in the civil law whether the father of such an infant died in a just war, or at home in his bed. 3. That by the Common Law the infant shall be in ward if his father dyed seized of land held by Knights service, without any such diversity. 4. A diversity in the Common law, where the heir of the tenant by Knights service is within age and a Knight at the time of his fathers death, and where not.  
The 8. division. 1. What penalties lie vpon the tenant if he do not his service. 2. Many causes of the tenants forfeiture in the civil law, 3. Some causes of forfeiture by the Common law.  
The 9. division. 1. Whether when the tenant hath committed felony or treason, and is attainted, he shall suffer any prejudice in his tenancy. 2. A diversity in the civil law, where the offence is committed against the person of the Lord, and where against the person of a stranger 3. That by the common law, by the atteynder of felony or treason the blood is corrupted,& in the one case the land shall escheat to the King, in the other to the immediate Lord. 4. The aforesaid determinations& conclusions of civil and Common law touching the forfeiture of the offendor are examined by the Law of God.   

The divisions and principal contents of the fifth Dialogue, of Ioyntenancie and tenancy in common.  
The first division. 1. THe ioyntenants and tenants in common, ought to haue equal profit. 2. That by the Common law a Writ of account will lie if one ioyntenant take all the profits.  
The 2. division. 1. That ioyntenancie is dissolved by death, unless there be some clause in the creation of the estate to the contrary.  
The 3. division. 1. That by the civil law by the joint gift of all the goods of a man, all corporal things pass. 2. That by the Common law if a man devise the third part of his goods to his wife, it shall so be ranted as they were at the time of the death of the testator. 3. That the queen may grant a thing in action,  
The 4. division. 1. That ioyntenancie by the civil law, may be of all such things as lie in contract. 2. That the limitation of tenancy in common is by the party, but the construction of it by the law.  
The 5. division. 1. That an assignee of a moiety in the civil law is bound by the covenant of his grantor. 2. That by the Common law in such case the assignee is bound by the covenant.   

The divisions and principal contents of the sixth Dialogue, of exchanges.  
The first division. 1. THat by the civil law contracts for a certain price are not exchanges, 2. That by the Common law the word excambium must be used in the exchange. 3. That the estates must be equal. 4. That the things exchanged must be in esse. 5. That an exchange is good, though one part of it do enure by way of extinguishment.  
The 2. division. 1. That the incumbents may not exchange their benefice by the Canon law. 2. That the Chapter may warrant permutations seed vacant in such benefice, wherein they haue interest or authority. 3. That by the Common law, Ecclesiastical persons, their patrons and ordinaries joining together, cannot make any good exchange of ecclesiastical benefice. 4. That the Statute of Mortmain is most strict, and pregnant in words.   

The divisions and principal contents of the seventh Dialogue, of devises, and Legacies.  
The first division. 1. THe antiquity of wills. 2. Plato his exception against Solons Law concerning wills. 3. Solons law is maintained and defended agninst Plato.  
The 2. division. 1. Such as be uncapable of inheritances and goods, may not be devisees, heires, or executors by the civil law. 2. A difference in the civil law betwixt the making of a devisee, and the making of an executor. 3. That by the Common law all persons to whom a grant may be made, a devise may be made unless it otherwise happen in some few cases. 4. That the devisee must be a person capable of the thing devised. 5. That by the Common law the devisee ought to be capable at the time of the death of the deuisor.  
The 3 division. 1. That by the civil law all such things may be devised as the testator hath in his own right at the time of the devise. 2. The three degrees of a testament by the Common law. 3. A difference in the Common law where a man deviseth a thing whereof he is not seized, particularly and by name, and where not. 4. That things which are not in esse at the time of the devise made, may be devised. 5. That the devise of tenant for life, or tenant in dower of the corn growing at the time of their death is good. 6. That when the party hath a certain and lawful interest in a thing, he may lease it, grant it, or devise it before the existence of it. 7. That a devise may be uncertain, but yet good in Law, because it may by special mean be reduced to certainty.  
The 4. division. 1. That by the civil law Ius accerscendi taketh effect in legacies. 2. Whether when the sixth part of a thing is devised, the heir or executor is compellable by the civil law to divide it, or to render in value. 3. That by the Common law sometime there may be a seuerance of the thing devised, sometimes of the profits or of the advantage of the thing.  
The 5. division. 1. That if a man devise a plot of ground whereupon a house is built, the house also passeth. 2. A house built vpon land entailed after the gift shall be recovered in a Formedon.  
The 6. division. 1. That by the civil law, when an especialty containing a debt is devised to one, the debt itself passeth. 2. Master Parkins his opinion touching the diuising of an Obligation is examined.  
The 7. division. 1. That by the civil Law the executor is bound to make good the thing which perisheth through his default. 2. That in some cases the time of performing legacies is left to the discretion of the Iudges. 3. That by the Common Law the executors are bound to perform the devise in convenient time. 4. A diversity betwixt an obligee& a devisee.  
The 8. division. 1. That things which are accessary do pass with their principal 2. That a mine of coal passeth with the land if it be jointly used with it, otherwise it is if it be severally used. 3. That a woman shall be endowed of a mine of coal discovered after the husbands death 4. That words of the Present tense in a devise may not be extended to the Future tense.  
The 9. division. 1. That by the civil law, if the devisee of a term die before the deuisor, the executor shall haue the term. 2. By the Common law a diversity is taken where the devisee death in the life of the deuisor, and where after his death, but before the legacy executed.  
The 10. division. 1. That by the civil Law, when a thing is devised to God or to Christ, it shall go to the Church of the Parish where the testator dwelled. 2. That by the Common law, and by the statute of 23. H. 7. such devise is voided. 3. What is meant by a Church parochial according to Rolfes opinion.  
The 11. division. 1. That by the civil law, where two testaments contain in them several sums, that which containeth the lesser shall stand, but by the Common law the latter testament.  
The 12. division. 1. That by the civil law if an ox be devised to one,& he die, the skin is due to the devisee. 2. That by the common law it seemeth to be due, otherwise it had been if there had been an exception of the hid.  
The 13. division. 1. That if the reconusor devise all his goods to the counsee, yet he shall haue execution of the land. 2. If the obligee make the obligor his executor, the debt is extinct.  
The 14. division. 1. That by the civil law, if a man ordain by his will, that his daughters shal mary by the appointment of Titius, that Titius his executor may dispose of this marriage. 2. That by the common law where a confidence is reposed in certain persons it is incommunicable to others.  
The 15. division. 1. That by the civil law devises are construed for the most part most favourably for the devisee. 2. That the common law so favoureth devises that it upholdeth equity,& the corespondency of reason. 3. That the Common law frustrateth these devises which are repugant to law.  
The 16. division. 1. That by the Canon law, if land be devised to a woman whilst she shall live chastened, her marriage is not implicatively& absolutely prohibited. 2. That the civil law& Comō law do favor marriage.  
The 17. division. 1. That there is a diversity in the civil law, where a man maketh his wife vsu fructuariā of his goods,& where he deviseth thē to her 2. That by the common law the administration of the goods and chattels of the testator doth appertain only to the executor.  
The 18. division. 1. That by the civil law the husband may demand a legacy due to the wife without naming the wife. 2. That in the Common law, there is a diversity, as touching bringing of actions in the wives name where the matter of the writ is real,& where it is personal. 3. That where the wrong doth immediately concern the person of the wife, the wife of necessity must be name.  
The 19. division. 1. That by the civil law, when maintenance is devised to one till ripeness of age, is intended of full age, 2. The diversity of ages by the common law.  
The 20. division. 1. That by the civil law when a mansion house that is in one parish is devised, the appurtenances in another parish do pass by the devise. 2. That by the Comō law land cannot be appurtenant to land.   

The divisions and principal contents of the eight Dialogue, of borrowing and lending.  
The first division. 1. THe difference in the civil law, betwixt mutuum and commodatum.  
The 2. division. 1. That particular persons, corporations,& churches parochial may be bound by contract of borrowing& lending by the civil law, 2. That by the common law Abbots, Priors,& such religious persons might charge their house by their contract,& by recognisans.  
The 3. division. 1. Two kinds of borrowing& lending by the civil law, natural& civil. 2. That the common law acknowledgeth this difference in substance& effect.  
The 4. division. 1. An vsurous lending or lending of money for interest is by way of objection maintained. 2. Aquinas his authority is urged for proof hereof. 3. The objection is answered by the Canonist. 4. Aquinas his authority disproved. 5. The civil law in condemning usury agreeth with the Canon. 6. The common law in this agreeth with the other laws.  
The 5. division. 1. A diversity in the civil law, when money is tendered at the day of payment& is after embased,& when it is tendered after. 2. To the aforesaid diversity the common law seemeth to agree.  
The 6. division. 1. That by the bond of the surety the principal debtor is not discharged by the civil law. 2. That by the common law as well the one as the other may be sued.   

The divisions and principal contents of the ninth Dialogue, of the baylement and delivery of goods and chattels  
The first division. 1. THe definition of depositum at the civil law. 2. The nature and course of it at the Common law, 3. A diversity where a writ of account of detinue& of trespass are to be brought concerning things delivered at the Common law.  
The 2. division. 1. That a thing cannot be said to be a depositum at the civil law except it be delivered to the party. 2. That by the Canon law the feoffee of the land is to haue the charters when the feoffment is without warranty.  
The 3 division. 1. That the bailie is not to be charged with the loss of the goods which happeneth merely by casualty.   

The divisions and principal contents of the tenth Dialogue, of the form and maner of ordinary proceeding in matters of Law.  
The first division. 1. THe things which are to be observed of the plaintiff at the beginning of a svit by the civil law. 2. Citation is proved to be of the substance of the proceeding, contrary to the opinion of some civilians. 3. The cautles to be observed at the common law in the comencement of an action. 4. Disablements in the persons of the pl. at the common law. 5. The statut of 23. H. 8. of giuing damages to the def. is compared with the rule of the civil law. 6. svit must not be maintained before an incompetent judge according to the common law. 7. The several jurisdiction of diuers courts is described 8. That the summons of the party def. is necessary exacted by the common lvw. 9. That by the default of lawful summons the proceeding of the pl. is frustrat by the Common law.  
The 2. division. 1. That by the civil law, if a man be bound to appear within ten daies, the tenth day is taken inclusive. 2. That the first day and fourth day of appearance are all one by the Common law.  
The 3. division. 1. A diversity of opening and prosecuting of private& public offences at the common law. 2. Exception is taken to informations used by common informers. 3 Many objections are made out of the civil law against common informers. 4. Punishments ordained by diuers Emperors against common informers. 5. Codicgnostes is charged by Anglonomophilax to mistake the point in question. 6. He is likewise charged to mistake the civil law in this point 7. The statut of 18. of our sovereign Lady the Q. is compared with the edicts of Emperors. 8. Codicgnostes his surmise that informations were not used in the best times of the Romans, is aunswered and confuted. 9. It is showed likewise that informations are expedient for the administration of Iustice.  
The 4. division. 1. Defaults are dispensed withal by the civil law, when they happen by the Act of God.  
The 5. division. 1. The most common action in the civil law is actio iniuriarum which is either civilis or praetoria. 2. Actions& enditements at the common law are compared with civil& praetorian actions.  
The 6 division. 1. The libel of an action of injuries is fully set down according to the form of the civil law. 2. exception is taken to the form of the libel for uncertainty. 3. the exception is approved by the common law. 4. exception likewise is taken to the libel for mingling things of diuers& several natures in it. 5. this exception likewise is maintained by the common law. 6. an other exception is taken for the superfluous alleging of the day& hour of the trespass don. 7. exception also is taken for using too many words in describing the wrong. 8. exception is taken for saying nemini iniuriam inferendo. 9. exception is likewise taken for using these words ( animo iniurioso) being take for a surplusage. 10. Codicg. answereth the exceptions. 11. Angl. particularly examineth& discusseth the exceptions. 12. Angl. excuseth& defendeth the abundance of words in declarations& libels. 13. the form of a declaration vpon an action vpon the case, resembling actinnē iniuriarum. 14. the cutting off of delays by the civil law. 15. the diminishing of delays by the common law. 16. the form of a defence or bar in an action of injuries. 17. the form of a defence in an action vpon the case. 18. the form of a trial by the civil law. 19. the form of a trial by the common law. 20. the form of iudgement in the civil law, 21. the form of entering iudgement at the Common law.  
The 7. division. 1. That by the civil law an action of injuries will not lie by the executor against the executor. 2. that by the common law actio personalis moritur cum persona. unless it be in some special cases.   

The divisions and principal contents of the eleventh Dialogue, of common wrongs and trespasses.  
The first division. 1. THe diverse kinds of injuries in the civil law. 2. what an assault is according to the common law. 3. that the common law giveth an action vpon the case for a slander.  
The 2. division. 2. That by the civil law an action of trespass lieth for the father, husband, master, for a wrong don to the son, wife, seruant. 2. That by the common law the husband may haue an action for a wrong done to his wife. 3. In what cases an action will lie for the master for a wrong don to his seruant. 4. In what cases by the common law an action will lie for the father for a wrong done to his son.  
The 3. division. 1. How the owner shall be punished by the civil law for a trespass don by his beasts. 2. In what case he shall not be punished though his beasts do hurt to an other man. 3. That by the Common law a man shall be punished for a trespass don by his beasts.   

The divisions, and principal contents of the twelfth Dialogue, of unlawful assemblies, riots &c.  
The first division. 1. THe description of public force by the civil law. 2. That in the matter of public force the common law agreeth with the civil. 3. A difference by the Comō law betwixt public force& open force. 4. The punishment of public force by the civil law. 5. That by the common law the councellors& committors of force are a like punished. 6. What an unlawful assembly is by the common law. 7. what a rout is. 8. what a riot is. 9. The punishmnt of the aforesaid offences by the Canon law.  
The 2. division. 1. The punishment of the Iustice not punishing such offences by the civil law, 2. That the just. of Peace by the common law are punished for remissness of punishing others for the aforesaid faults.   

The divisions and principal contents of the thirteenth Dialogue, of Treason and Rebellion.  
The first division. 1. THe reason is shewed by Codicgnost. wherefore treason is aptly termed a fault against the dignity of man. 2. The punishment of treason in ancient times.  
The 20. division. 1. The diuers kinds of treason by the civil law. 2. The diuers kinds of treason by coining of money in the civil law, 3. The punishmnts of traytors by the civil law, 4. The several coins of foreign princes in ancient time. 5. The diuers kinds of treason by the Common law 6, How far forth this word( Ligeance) doth extend by the common law 7. How the queens enemies are to be punished by the common law agreeing with the Law of God. 8. How enemies are punished by the canon law. 9. How breaking of prison is taken in the common law, 10. How treason is committed by coining of money according to the censure of the Common law. 11. The several punishments of treasons by the Common law.   

The divisions and principal contents of the fourteenth Dialogue, of Homicide, that is murder, manslaughter, &c.  
The 16. division. 1. THe several kinds of Homicide by the civil law,& first murder is described. 2. Manslaughter se defendendo by the civil law. 3. the description of self slaughter by the civil law. 4. a diversity of killing a mans self by the civil law. 5. the punishmnt of self slaughter by the civil law. 6. homicide by casualty is described, 7. Angl. taketh exception to the division of homicide by the civil law, 8. an other division of homicide by the civil law, the difference of killing men voluntarily& inuoluntarily, is showed to be ancient. 9. the definition of murder by the common law, 10. malice whereof murder cometh is shewed to be two fold,& diuers cases are put thereupon. 11 the punishmnt of murder by the Common law. 12. ●he description of manslaughter by the Common law. 13. the punishmnt of manslaughter by the common law. 14. Manslaughter se defendendo by the common law. 15. the punishmnt of manslaughter se defendendo. 16. homicide by misadventure. 17. the punishmnt of it. 18. homicide of a mans self,& the punishment of it.  
The 2. division. 1. Homicide is shewed to be twofold in the civil law, Consilij and Operis. 2. By the common law the counselor& assister in murder are accounted principal offenders.  
The 3. division. 1. Homicide by witchcraft is described. 2. the punishmnt of witches& magicians by the civil law. 3. they that haue asked coumsel of witches haue been in ancient time punished. 4. An objection is made of exorcism used in the Church. 5. Answer is made to the objection according to the opinion of Bodinus. 6. the great& strange power of witchcraft. 7. Lucan is commended for his ample disclosing of the detestable secrets of sorcery. 8. the news of the 12 Tables do condemn engraffed. 9. Seneca his opinion of charms& enchantments is disliked, 10. S. Augustine confuteth the opinion of Seneca. 11. It is likewise disproved by Pausania. 12. Witches are proved to bee apostates,& in what maner they become apostates. 13. It is proved that the bodies of witches do work with their minds in lewd enterprises. 14. Alciat his opinion touchind the meeting of witches amongst themselves,& the meeting of the devil is urged. 15. Alciat his said opinion is confuted by the authority of Bodinus. 16. A double reason is alleged, wherefore the devil worketh not for witches after they be imprisoned. 17. That necromancy& magic was used in ancient time. 18. A discourse of the aparition in the likeness of Samuel. 19. The punishment of necromancers& conjurers by the civil law. 20. The punishment of necromancers& witches by statute. 21. The punishment of conjurers by the Canon law.  
The 4. division. 1. Homicide committed by the Canon law by procuring the untimely birth of a child, if death do ensue. 2. The civil law punisheth such offence whether the child haue received life or no. 3: That though in Bractons time the common law did agree with the civil& canon laws in the punishment of abortiuements, yet now there is no such punishment by the common law.   

The divisions and principal contents of the fifteenth Dialogue, of Theft, &c.  
The first division. 1. THe division of theft by the civil law. 2. wherefore the word fraudulent is used in the definition of theft. 3. How petty the every is punished by the civil law. 4. how the stealing of things of greater value is punished by the civil law. 5. what is felony by the canon law, and what petty larceny.  
The 2. division. 1. Receiuors& theefes haue the like punishment by the civil law, but yet with many diversities& limitations. 2. how the receiuors of heretics& other offenders are punished by the canon law  
The 3. division. 1. The description of robbery by the civil law. 4. the punishmnt of robbery by the said law. 3. The punishment of robbery by the canon law. 4. the description of robbery according to the common law  
The 4. division. 1. What kind of housebreach is capital in the civil law. 2. the definition of burglary by the common law.   
FINIS.   

THE SECOND PART OF THE parallel, OR CONFERENCE OF the civil Law, the Canon Law, and the Common Law of this realm of England.  
WHEREIN THE AGREEment and disagreement of these three laws touching diuers matters not before conferred, is at large debated and discussed.  
Whereunto is annexed a Table containing the principal Questions, matters, and points of the Dialogues ensuing.  
Handled in seven Dialogues, by WILLIAM FVLBECKE.  
LONDON Printed by Thomas Wight, 1602.   

A Table of the several titles of the seven Dialogues ensuing.  

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

TO THE MOST GRATIOVS AND reverend Father in God, John by the providence of God, Lord Archbishop of canterbury, Primate and metropolitan of all England, and one of the Lords of her majesties most honourable privy counsel.  
RIght reverend, and right honourable, it is now a twelvemonth past sithence I presented to your Grace a comparative discourse of the laws: A subject deserving the industrious search of some diving brain, by me superficially handled, and as it were left to others to be complementally perfected: but sithence by good success and the favour of the almighty it hath gained the approbation of men skilful and learned, who haue persuaded and encouraged me to make further progress in this business, least I might seem coy in weighing lightly their friendly speeches,& careless in refusing so important a task, though to me importable, as being the club of Hercules laid vpon the shoulders of Hylas, I haue again adventured vpon this cumber some province, and drawn other furrows in this stony soil: and as I haue continued the work, so haue I continued the dedication thereof in all constant observance to your Lordship, whose regardful countenance toward me hath merited more at my hands then such worthless pains, rather by the travail of my pen, and the wick of my contemplation, to publish and notify to the world my dutiful thankful and zealefull affection toward your graces person, then by the vnfeatured lump and disproportioned bearewhelpe of my misconceyuing,& miscarrying endeavour, to platform a consummate and exemplary parallel or Trinomion, which is an object to be aimed at, and a pray to be pursued; not of the Stonegall, the Muskette, and the Merlin, but of the Eagle, the Goshauke, and other birds of an higher wing, and more surmounting flight: and for the accomplishment thereof it were to be wished, that God would vouchsafe our inns of Court with some second Budaeus, that is a third Varro, whose skill in the laws might bee exquisite, whose pains extreme, whose reward excellent: for mine own parte though I bee rather a rash then a voluntary soldier in this camp, yet I am bound by conscience not to eat the bread of idleness, to do for my country what I can, and to labour in my calling as I may. And whatsoever this book is, or whatsoever myself am, or whatsoever my prayer may prevail with almighty God, all these, if these be any thing, do with the knee of submissive reverence profess vassalage to your Lordship. And if the Heauens would sympathise with my hart, and my hart should not by pleasing myself, and others, displease your Grace, the very Heauens should be long without you, that this land may be long the better for your Lordship. The God of heaven grant this, if it be his will, for Learninges sake, Quae duplices tendens ad sydera palmas, prayeth for the same: virtue prayeth for the same: strangers pray for the same: Beneficence to the rich: Munificence to the poor, crave the same: The Church with sacred vows: The Common weal with more then common wishes implore the same. What period can be better then prayer? Therefore here I cast anchor, and bind up these spreading lines.  
Your Graces most humble to command: WILLIAM FVLBECKE.   

The Introduction to the second part of the parallel, or conference of the civil Law, the Common Law &c.  
NOmomathes, when the first conference of the three laws was finished, gave himself to his recreation, which was the hunting of the buck, an exercise commendable for Gentlemen, and used in ancient time of them, whose high estates had entitled them with the names of Heroes,& Semidei. But when winter began to  shed his could influence, and to replenish the air with congealing vapours, to make the earth as it were a naked beldame, and to cause the dugs of the sea to swell with surging billows, Nomomathes retired to his books, and gave a farewell to the fields, betrothing himself that winter to his study. And because the juice of the late conference of the laws had turned to good blood in his mind, he meant to recontinue the conference, of which he had a more strict regard then of the former: For when it was rumord in the country where Nomomathes dwelled, that such a conference was had: and afterward certain copies were dispersed, and diuulgated, some were well pleased, some were discontented with the Dialogues: Pro captu lectoris habent sua fata libelli. Amongst the rest that were discontented was a person, a plain country man, and a gentle man not unlearned, who when they had heard, that Nomomathes meant to revive and recontinue the conference, purposed to go to his house, and to open their mindes as they conceived of the conference. Their purpose they followed, and to the house they came, where being kindly and curteouslie entertained of Nomomathes, and in their by-talke glancing at the Dialogues: Nomomathes willed them to spare no speech, and professed that he would willingly admit their censures, and that he would hear them in order: They seeing his patience prepared, delivered in few words their private conceits. And first the gentleman took exception to the discourses of Codicgnostes: for that he in the first Dialogue, discussing matters of common weal, and of the civil Law, did forget to handle very important matters, and to his profession not impertinent. The first was because he did not treat of debts, a thing in the civil Law not omitted: and yet in no Law sufficiently debated. Secondly, he speaketh nothing of accounts or reckonings, whereas that is a large and frequent title in the civil Law. Lastly speaking ex professo of the original of tenors and services in the fourth Dialogue, he speaketh very little of Conditions, which very often are the constituent causes of these services: With this he concluded, and then spake the person, who did expostulate with the Canonist some injuries, because the Canon being so full and pregnant in matter of tithe, he did not vouchsafe to speak any one word of tithes: And whereas we haue Parsons said he, haue much impediment by Prohibitions, and many times wrong, when they come to trial: for the country people which are the jurors, who haue no more desire to pay their tithes, then the devil hath to lose his intercourse with the seven deadly sins; the Pope to be a Protestant, and a bear to go to the stake. If any Prohibition concerning tithes come to be tried by them, ar as sure to pass against the person, as an old chimney is sure of blackness. But let any matter come to be tried touching common, which concerneth themselves, and their own profit, they will as surely go with the commoner, as the clouds go with the north-east wind: Therefore it seemed to him to be very convenient, that because the Canon doth so much favour Parsons, that therefore the Canonist especially should haue debated at large of these matters: And he thought the Canonist speaking so little of them in the whole discourse, was much troubled with the blanch,( the Canonist here being somewhat choleric interrupted him, and said he iangled: for he said there were many things proposed in the Dialogues, which the Canon Law never meddleth with all, neither hath it so much tasted of them, as the dog licking of Nilus: And in some things which were in the Dialogues, the Canon Law hath nothing else, but which the civil Law hath: so that he should not haue kept decorum, but should haue thrust his sickle into the harvest of Codicgnostes, if he should haue encroached vpon such things, as the Canon Law hath as it were at the second hand strained from the civil. But, said he, as touching tithes, if any question had been proposed, I would not haue been defective in the handling them at large. Then the poor country man made a low congee, and Nomomathes bowed unto him, as being willing to hear him. Sir( quoth he) I am by your worships favour a poor country yeoman, dwelling near a place called Aitipolis: and my yeares are more then my knowledge, my patrimony better then my education, and my hand more nimble then my tongue: And I haue had a very great desire to haue some understanding of Lawe, because I would not swim against the stream, nor be unlike unto my neighbours, who are so full of Law-points, that when they sweat, it is nothing but Law; when they breath, it is nothing but law; when they niece it is perfit law; when they dream it is profound law. The book of Littletons tenors is there breakfast, their dinner, their boier, their supper, and their rere-banquet: every ploughswayne with us may bee a seneschal in a Court Baron: he can talk of Essoines, Vouchers, Withernams, and Recaptions: And if you control him, the book of the grounds of the Law is his portesse, and ready at his girdle to confute you. surely sir, my neighbours are full of sension and tention, and so cunning, that they will make you beleeue, that all is gold, which glistereth: So that for a man to be amongst them, and to haue living and want Law: is as if a man should haue bread to eat, and want teeth to chew it: Which occasions moved me at the first to seek for some skill in Law, and amongst other books, I bought The Conference of Law, whereof hath been spoken, and casting mine eye vpon the dial of common wrongs, and trespasses: I wondered that he which maintaineth the Common Law, amongst his common wrongs and trespasses, he spoken nothing of Wast done in a mans ground: and very little of an Action vpon the case, which is a wheel much turned about in the place where I dwell. And though he hath delivered much of Iointenants, and Tenants in common, he speaketh either little or nothing at all of Parceners. Now many of us country people marry very often with landed women, and therefore would gladly be seen in that learning. truly Sir I bought the book for my more understanding of the law, and for the novelty, and because it was in English: yet there is a vengeance deal of Latin in it, which put me to the cost to buy a Thomases dictionary, but it is no great matter for that, for it will serve my son Reginold, when he shall bee ten yeares old, or thereabout: But I pray you sir at the next conference let us haue somewhat of these matters, which I haue mentioned unto you: When he had ceased to speak, Nomomathes gravely and with aduise censured their censures, and spoken in this manner. I see now( said he) the proverb to be verified Quot homines tot sententiae. there be as many minds as there bee men; And though ye haue delivered your exceptions in sportful manner, which as I do not greatly dislike, so I do not greatly delight in, yet I must confess every of them doth fly to the mark, and the blame resteth vpon me, who might haue proposed these matters to be discussed; but because the lucre, or loss of the conference, was to redound wholly to me in all correspondency of reason, and not to others, but by my courtesy: I thought it a more convenient course, and more free and ingenious to follow the thread of mine own choice, then the uncertain wing of popular conceit. again, all things cannot be handled at all times, and nothing is to be intruded into such a conference which doth not relice to the sundry palates, and tastes of these several laws. For many things there be in the common law which hath not any affinity with any thing in the civil or Canon. But because your motions are so consonant to reason,& so directly respective to your vocations and functions, which in no well ordered common weal ought to be loosely regarded: therfore I protest unto you in sincerity, that if all these things, which you haue mentioned may be cast in the mould of a tripartite discourse, the second conference shall bring forth that which you haue before conceited, they thanking him for this kindness departed, he immediately questioned of the Lawyers, whether they could bring into the compass of their several reckonings all these matters abovesaid, who anusweared that they could. Then said he, because the Canonist hath been so deeply charged, we will begin with tithes which he is reproved for omitting. Thē the Canonist said, that they might be discoursed vpon according to the several laws under the title of prohibition. That title thē said Nomomat. shal be the first: the second of actions vpon the case: the third of debts, the fourth of accounts, the fift of wast, the sixth of parceners, and the seventh of comditions, wherefore bend yourselves wholly to this task, and let these things be diligently preached& considered of you, and for this purpose take the deliberation of twenty daies: which being had, and the twenty daies being run out, Nomomathes did thus parley with Canonologus.   

The first Dialogue of the second part of the parallel, or conference of the civil Law, the Canon Law, and the Common Law of this realm of England. Of Prohibitions and Consultations.  NOmomathes. 
I am very desirous Canonologus, to know the first and primigeniall existence of tithes: 
1. The original of tithes is enquired of.  that their original being known, their lawfulness, and necessary use may appear, which hath not seldom by diuers objections and quarrelous surmises been shaken, and some haue engaged themselves so deeply into this controversy, that they haue suffered great affliction therefore, if not loss of life.  Canonologus. 

2. The council of Constance is said to haue condemned Wiclif, for holding tithes to be pure alms.  It is true: And amongst the 189. Articles of Wiclif, condemned by the council of Constance, that was noted especially to be erroneous, that he held tithes to be nothing else, but pure, and frank alms: and that the Parishioners might withhold them from their Pastors, if they were wicked men: And for that especially he is said to haue been burnt 
Rebuff. in tractat. de Deci. 5. qu. : for that which belongeth to God may not at mans pleasure be derogated, detracted, or diminished.  Nomoma. 
Yea, but how do you prove that they belong to God?  Canonol. 
I can easily prove that by their original and lawful institution of them, 
1. The original of tithes is demonstrated to be by the Law of God.  which was thus: God hath set down this rule in Exodus: Decimas& primitias tuas non tardabis offer 
Exod. c. 22. . And in Leuiticus more particularly he hath appointed the payment of tithe: Omnes decimae terrae, siue de pomis arborum, siue de frugibus, domini sunt,& illi sanctificantur 
Leuit. c. ult. . Neither is that dissonant which is written in the proverbs of Salomon: Honora dominum de tua substantia, et de primitijs frugum tuarum da pauperibus 
proverb. 3. . tithes certainly are God his tributes; 
2. God his deputies for the receipt of Tithes are set down.  and as the Canon saith, are given him in signum specialis dominij 
c. cum non fit eod. . And it is likewise set down, who should be God his deputies for the receipt of such tithes: Filijs levi dedi omnes decimas pro ministerio quo seruiunt mihi in tabernaculo foederis 
Numb. c. ulti. . The reason is set down by Ezechias: Vt possent vacare legi Dei 
2. Paralipo. c. 13. . And by the apostle Paul: Qui altari seruit, de altari vivere debet 
1. Corinth. 9. . And of paying tithes, 
3. The Heathens which knew not God, had great regard of paying Tithes.  the very Heathen which knew not God had great regard, as may appear by Plinies report, where he saith, That frankincense being gathered, was conveyed on Camels backs to Sabola, there being but one way to carry it, and to go out of that way was capital, and at the gate which was at the end of the way, the Priestes did receive tithes of the things that were carried for their God called Sabis: which tithe or Tenth part they took by measure, not by weight: And before such payment of tithe, there was not permitted any merchandise of them 
Plini. lib. 12. c. 14. . And the romans did pay such a Tithe unto Hercules. 
4. Lucullus is specially commended for paying Tithe.  And they accounted Lucullus, who was very skilful of their laws and customs to haue been greatly increased in his wealth and stock, especially for this, because in the due performance of his Tithe, he was always diligent and exquisite 
Alex. lib. genia. 3. c. 22. . And when Veios being taken, gold should haue been sent to Apollo of Delphos, in the name of the Tenth of the pray which Camillus had vowed unto him, 
5. Camillus is likewise commended for his diligence in procuring Tenth to be paid.  and in the treasury there was no great store of gold for that defrayment, the roman nations brought into the treasury as much gold of their jewels and ornaments, as did serve for that purpose: rather having regard of public duty, then private profit 
livi. lib. 5. . And Plinie likewise testifieth, 
6. The Rom●●e● careful in paying first fruits.  that the romans did not taste, nor make any use of their new corn or wine, until they had given their first fruits unto the Priestes 
Plini. lib. 18. c. 2. . And pharaoh in the time of the great famine of egypt did allow to the Priestes a certain liuelode of corn out of the barns 
Genes. 47. , which is not discrepant from the ordinance of God, as it is set down in the prophecy of malachi: Inferte omnem decimam in horreum meum, vt sit cibus in domo mea,& probate me supper hoc 
Malach. 3. . certain it is that they which dutifully and plentifully pay their tithes without fraud and miserable pinching, or malicious quarreling with their Pastor, or Curate, do more flourish and prosper in their wealth, substance, and their profits of the earth, then such as profanely and injuriously detain them: Cura dijs dij sunt, et qui coluere colentur. 
ovid. in Metamorph.  And there is a good similitude or observation collected by Rebuffe vpon the affliction of the Philistines, that whilst the Philistines withheld the ark of God, they were punished with many scourges, penalties, and corrections: For the fruits of their fields was devoured of the Mise, and locusts: and so he saith, that the lay people as long as they with hold the lawful tithes from their Ministers, shall be with diverse losses and crosses afflicted 
Rebuff. tractat. de Deci. qu. 15. .  Nomomath. 
If Parsons ought to haue tithes as you haue plainly proved, then they ought to be contented therewith and not to haue any lands or tenements, which now they haue: for as there is an affirmative precept in the law of paying tithes: 
1. Whether Parsons ought to haue no more living then tithe 2. It is denied by Canonologus that they ought to haue no more living.  so there is another negative ordinance that the levites should possess nothing else.  Canonol. 
But that negative law was not made to be perpetual, as may appear by the last Chapter of Leuiticus& by the 27. and likewise by the 25. Chapter, where it is expressly said. Domus urbium Leuiticorum pro possessionibus sunt inter filios Israel, suburbana autem eorum non veneant, quia possessio sempiterna est.  Nomomath. 
Whether by your law may a man prescribe in not paying tithes.  Canonol. 
No man by our law may prescribe in not paying tithe: 
Dom. in c. 2. col. ill. de prae. in. 6.  and a man is bound to pay tithe though by an hundred yeeres he haue not payed, because if it be an offence to pay slowly, it is a greater offence not to pay at all: 
c. decim. in princip. 16. qu. 1.  and the longer the tithes are with-held, the offence is so much greater, because as the reason of our law is: diutius detinent infaelicem animam alligatam: 
c. fin. de consuetu.  but a lay-man may prescribe in paying a special portion in lieu of the whole tithe as to pay the twelfth part, or the twentieth part. 
Part. paris-consil. 25. vidiat. 3. nu. 21. will. 4  Yet if the Minister or Curate may not be maintained by the residue of the tithes, he may sue for the whole tithe 
Angel. claws in versic. 10. . And if there be a composition betwixt the Curate, and his Parishioner, that he shall pay no tithe this composition is merely voided: otherwise it should be if the composition had been that he should pay a certain portion of tithe, as the sixtenth or twentieth part, or that he should pay no tithe for certain things: for though the composition were before the Bishop, yet it could be no otherwise: 
Text in c. venerab. de confir. util.  yet according to our law the Bishop may by way of composition alter the place or time of paying tithes.  Codicgn. 
To this which you haue said our law agreeth,& we haue an express rule: 
2 The civil Law agreeth thereunto.  sacerdoti petenti decimas non potest obijci compensatio . 
ludovic. de Rom. in singular.  and the reason is because fisco petenti tributa non potest obijci compensatio 
l. 3.& 4. c. de come. pen. le. aufert.§. qui compensati. ff. de iu. fisc. . Therefore wickedness may compensation be objected in tithes, quae deo debentur. 
Gazalup. in ver. Decim.   Anglonomop. 
But by our law if a man grant parcel of his mannor to a person in fee to be discharged of tithes, 
3 By the common law a man may prescribe in paying a temporal recompense in lieu of tithe. & he maketh an indenture therof,& the person by assent of the ordinary granteth to him that he shall be quit of the tithes of his mannor for this parcel of land, now if he be impleaded for the tithes therof he may haue a prohibition, and if this dead haue been made from time out of mind, and he hath been continually quit of the tithes of that mannor he may haue a prohibition in such case, if he be impleaded: and so likewise it is if such discharge grow by reason of a composition. 
Fitzher. N. B. 41. G. 43. K. 8. E. 4. 13.   Nomomath. 
I pray you let me know in what cases tithes are recoverable at the spiritual law, and when at the common, that so I may perceive the diversity of the jurisdiction of these Courts, which in itself seemeth to me to be somewhat perplexed& difficult, unless it be opened& explained by cases accommodate to the purpose.  Canonol. 
There be two sorts of tithes, being parcel of the inheritances& possessions of lay men of the first by your favor I will speak first, 

1. Two sorts of tithes are set down by the c●nonist: some feudal, some ecclesiastical.  
2. The Church only holdeth conusans of the right of tithes.  
3. The King of france his edict touching tithes is set down.  
4. When the question is facti and not juris the examination of tithes may belong to a lay judge.  & then descend to the other: when the right of tithes is in question, because that is a mere ecclesiastical subject, the church hldeth conusance, 
gl. in c. ex tenor. de for, compe. & there is an edict made by Phil. the 4. K. of France touching tithes in this manner. De cognitione decimarum non feudalium in petitorio vel postestorio, praesertim inter ecclesiasticas partes, gentes nostrae se nullatenus intromittant. 
Rubric. de decim.  And this is according to the rule of our law de causa spirituali solus ecclesiasticus cognoscit ubi quaestio fit juris. 
c. tuam de ordin. cogniti.  but where the question is facti,& not juris the examination of the cause may belong to a lay judge. 
Text in Clē. dispendios. de judicum c. teter. de jur. calum. c. fin. de rer. permut.  but if the controversy be mixed, and the property is as well to be decided as the possession, the matter is to bee discussed before an ecclesiastical judge, 
Abb. c. literas& rubric. de judic. num. 51. & when tithes are leased or dimised unto a man, he may demand the tithes before a lay judge, unless there be contraria fori praescriptio, as there is in the city and diocese of milan: 
Gemin in c. ult. in fide for. competen. in 6. gloss. in c. rest. de loc. monet c. 8. de decim.  yet where the controversy is betwixt these that be mere clergy men, though it be a possessory suit, yet it is to bee decided by an ecclesiastical judge 
Nauar. in repet. cum contingat. . neither may lay men be compromittes of a decimal cause if the right come in question: 
council. barrel. tract. moder. de compromis.§. 2. gl. 1 num. 324.  but such tithes as be not spiritual, 
clergy men though it be merely possessorie: yet it belongeth to an ecclesiastical judge.  but as I haue termed them before feudal, may be ordered and disposed by lay compromittees.  Nomomath. 
You haue satisfied me Canonologus touching the point of Ecclesiastical jurisdiction where spiritual tithes are to be demanded: Now I pray you show me the nature and original of these feudal tithes, which as yet are more obscure.  Canonol. 
Their nature shall appear by their original which was thus. 

1. The nature of feudal tithes is opened by the Canonist.  
2. Charles martel is accused of Church-pillage.   Charles martel after that he had obtained an happy victory against the Saracens, who marching from spain did spoil and waste the lands, goods, and temples of the French, did mean to recompense his nobles& peers of his realm with some great reward, and that he might testify his liberality towards his said nobles, by the consent of the Bishops of his kingdom, he did give unto them the tithes of many goodly Churches, taking a solemn oath that if he lived any while, he would make the Church a large amends for this matter, which notwithstanding he did not: but not long after, as( Guagni reporteth) for that sacrilege he died, and was carried to hell, and his body being entombed in the temple of Saint Dennis, within a few yeeres after there was seen vpon his grave a great serpent, 
3. The Canon●●t ●●●eth a strange take of Charles Mar●●ll.  it might be it was the divell in the likeness of a Serpent: but shortly after there was neither body nor bones of Charles found in that place, and therefore some thought that he was carried body and soul to the divell: 
Guagni. in ult. Car. martel.  for that cause the wiseman hath said, it is a destruction for a man to devour that which was sanctified, &c. 
proverb, c. 20. v. 25.   Nomomath. 
It is not good to enter into the counsels of the almighty. The Bethshamites were not unpunished for their prying into the ark. And the proverbs of the heathens do admonish us not to bite the dead, nor to wrestle with spirits. It is not good to charge the dead with any other thing thē that which happened in their life: for whosoever are departed this life stand or fall to their Lord, who is the judge of the quick and dead, 
4. It is thought of Nomomath. to be but a fable.  and I think the report of the serpent to be but a mere fable discrediting the author, and dishonouring that worthy protector of the Christians: but what say you Codicgnostes of these matters.  Codicgnostes. 
I do not remember any thing in our lawe repugnant to that which Canonologus hath above delivered.  Nomomath. 
What say you Anglonomophilax.  Anglonomoph. 
Our law doth neither fully agree with that which Canonologus hath uttered, neither in very many things disagree from it, as by your patience I shall at large demonstrate. Wee haue a rule in our statute-law not much differing from the edict of the King of france above recited by Canonolog. 
5 One of the ancient statutes of England is compared with the edict of the king of france.  In decimis& mortuarijs quando sub istis nominibus proponuntur, prohibitioni nostrae non est locus, dummodo decimarum illarum quamtitas non ascendat ad quartam partem bonorum ecclesiae 
Artic. clear. c. 2. 10. H. 4. 1. Registr. 49. b. : And as to the diversity used in the Canon law where the question is facti and not juris, and where it is de petitorio and not de possessorio, 
6 The Canon law agreeth with the common, attributing of the division of the right of tithes to the spiritual judge.  M. Fitzherbert hath this assertion: that if any parishioner do disturb or hinder a person or Vicar in the carrying away of his tithes, which is an injury in the fact, whereas the carriage is through the ways and passages used and accustomend, the person or Vicar may sue in the spiritual court for this disturbance 
Fitzh. N.B. 51. A. : for in this case the spiritual Court proceedeth unto excommunication 
Registr. 46. b.& 47. a. : One person may sue a spoliation against an other in the spiritual Court, 
7 Where one person may sue a spoliation against the other in the spiritual court.  for the taking of tithes which belongeth to his Church though they claim by several patrons, and by several presentments, but this is to bee understood where the said tenth doth not amount to the value of the fourth parte of the Church, for otherwise the party grieved may haue an indicavit because the title of the patronage may come in debate: But if they claim by the presentment of one patron thē a spoliation may be sued although the profits or tithes do amount to the fourth part, or third part, or the moiety of the bnfice: because in such case the title of the patronage shall not come in debate. And if a prohibition be sued hereupon, the party may haue a consultation 
2. H. 7. 12. Br. prohibit. 16. Fitzh. N.B. 51. C. 37. E. 45. B. 30. E. : and if a man haue certain sheep depasturing, and lying within the precincts of the parish of N. within a year, the person of that parish may sue in the spiritual court for the tithe wool of these sheep: and if the party sue a prohibition he may haue a consultation 
Fitzh. N.B. 51. D. : for the suite for tithe doth properly appertain to the spiritual court, 
8 The executors may be sued in the spiritual court.  as by statute it is ordained 
1. R. 2. c. 13. 24. H. 8. c. 12. 2. E. 6. c. 13. : and it appeareth by the Register of writtes, that if the pattie which withholdeth tithe make his executors and die, the executors may bee sued 
Registr. 48. . And if a man detain tithes for his sheep which went in the parish of N. and were depasturing and couching there so long time, if the party die, the person may sue his executors for these tithes in the spiritual Court. And so the person may sue the executors for the arrearages of tithes due by reason of certain milns of the testator in the life of the testator 
Fitzherb. N. B. 51. G.H. : And the person by prescription may in the spiritual Court claim tithes virularum& lacticiniarum of the beasts pasturing· in his parish, as namely milk, butter and chief 
Fitzherb. ib.& Regist. 48. , and the tithes of wool, and the tithes of honey and wax, 
Fitzherb. ib.  and for these he may sue in the spiritual Court, and by many authorities in our law, the right of tithes is tryable in the spiritual Court. 
22. E. 4. 24. 38. H. 6. 21. 22. Assis. 75.  But where a man is sued for tithes of great trees above the age of twenty yeeres, a prohibition will lie by the statute of 45. 
9. Of what trees tithe may be demanded by the statute of 45. E. 3.  E. 3. but of horn beams, salowes, and the like, of what age soever they be, being not apt for timber, tithes ought to be payed. 
Ploid. come. en le case enter Soby& moll.  And the branches of trees which be privileged from tithes shall be also privileged: and the svit for the tithe branches of trees which are not privileged, shall be in the spiritual Court as well as the svit for the tithe of the trees themselves: for as Bracton saith, non pertinet ad judicem secularem cognoscere de iis quae sunt spiritualibus annexa. 
Bract. lib. 5. c. 2.  And thus it may appear, that as soon as the right of tithes cometh in debate, the lay Court ought to cease, and shall be out of jurisdiction: and if it may appear that the right of advowson cometh in debate the spiritual Court shall be out of jurisdiction: But if the person of N. do lease for yeares a certain portion of his tithes rendering a rent, he shall haue an action of debt for the rent if it be behind at the common Law, 
10. That the rent paid for tithes vpon a lease for yeeres is a lay chattel.  and not in the spiritual Court, because the money is a lay chattel 
8. R. 2. Iurisdict. 21. D. 5. 106. . And if the person take oats, or other grain, as his tithe: and an other taketh them away from him, the nature is altered, and now they are become a lay chattel, and the person shall haue an action of trespass at the common Law 
35. H. 6. 39. : Yea by the book of 2. Ed. 4. if they be severed from the ix. part, and not yet in the actual possession of the person: Yet if a stranger carry them away, he may haue an action of trespass 
2. E. 4. 15. 20. E. 4. 3. : But he may not in any case distrain for tithe: for there is not any land in demesne vpon which the distress may bee made 
11. H. 4. 40. . But if in such case debate happen betwixt person and Vicar, so that the right of tithes is to be tried, the svit is to be maintained in the spiritual Court 
35. H. 6. 39. 47. .  Nomomath. 
But what if tithes be not duly paid, what punishments are there to be inflicted by your laws.  Canonol. 
In the demanding tithes, if iudgement be given for the demandant, there must a precept issue with a monition under pain of excommunication, 
1. A Precept issueth with a monition under pain of excommunication for the due satisfaction of Tithes.  if he do not within a certain number of dayes pay or satisfy the demandant so much tithe. And the Law is that against such as be stubborn, Brachium seculare inuocari potest 
Gl. in verb. praemonit. in cle. 2. de iud. c. postula sti. de homici. .  Codicgn. 
We haue nothing in our Law contrary to this.  Nomomath. 
I pray you show me Canonol. the quality and force of Excommunication, that I may be better satisfied.  Canonol. 
The Canon Law doth observe eight degrees in proceeding to the correction or punishment of them of the clergy, 
1. The degrees which the Canon Law observeth in punishing offences in the clergy.  in punishing any offence whatsoever: The first is a monition, vt desistant 
c. uni. de vit. et hone. clear. lib. 6. : The second excommunication, si non paeniteant 
c. clear. arma. de vi. et hon. clear. : 3. A suspension of their bnfice, si differant 
c. praeterea de vsu. : 4. The deprivation of their bnfice, si perseuerent 
c. cum delic. in fin. de accusa. : 5. A suspension of their orders, or degrees, si obstinatè contendant 
c. cum non ab homi. de in fi. : 6. A thrusting or intruding of thē into a Monastery, or Religious house, si indurati existant: 7. perpetual imprisonment, si incorrigibiles existant 
d. c. cum non ab homine. : 8. A solemn degradation in the presence of temporal officers 
c. non de verb. in fi. . And this order of punishment is always observed, unless the crime be so great, heinous, and scandalous, that this solemnity is omitted, and then there is a summary, and immediate proceeding to degradation, and to the delivering of the party up to the secular power.  
But there be two sorts of Excommunication, the lesser is not penal, but medicinal, 
2. sorts of Excommunication, are set down by the Canonist. & is proporcionable to that lesser thunderbolt, which the Poet describeth: Est aliud levius fumen cvi dextra Cyclopum, Saeuitiae flammaeque minus, minus addidit irae 
ovid. in Metamorph. . It doth rather in some small proportion terrify, then in any great measure hurt. Yet here a distinction is to be used: for either the sentence of the lesser excommunication is pronounced ab homine, and then it is medicinable: or else it is pronounced a Canone; as when a man is ipso facto excommunicate, for then it is penal 
c. medicinalis de se. exco. lib. 6. . But the sentence of the great excommunication doth anathematize, and is always penal 
d. c. medici. . All these things may be thus resolved, either an ecclesiastical person doth commit some small offence, and then he is deposed,& not deprived, but for a time suspended 
c. cum delic. de accus. : But if he commit grievous offences, then he may be deposed 
d. c. cum non ab homi. . But if he commit faults most grievous, such as by the civil law he shall suffer death for, then he may be condemned ad perpetuam carcerem, to haue imprisonment during his life 
c. l. de here. lib. 6. . Excommunication is termed in our Law mucro Episcopi: and therfore it is said in the Canon law foelici mucrone Episcopi sacerdotum piacula resecentur 
16. q. 2. c. visis in fi. . But the utmost punishment of a lay man for not paying of Tithes, or other misdemeanour punishable by the Canon Law is excommunication onely: after which issueth a writ of Excommunicato capiendo at the Common Law.  Anglo. 

3. The compulsory Statutes of payment of Tithes are mentioned by the Barrister.  It is true, but we haue compulsarie Statutes made for the payment of Tithes: As namely the Statute of 27. H. 8. ca. 20. which is, That if the Ordinary of the diocese &c. do for any contempt, contumacy, disobedience &c. of the party not paying his lawful tithe, make information or request to any of the kings most honourable counsel, or to the Iustices of the peace of the shire &c. to order or reform any such person &c. that then he, or the kings said honourable counsel, or such two Iustices of peace, whereof one to be of the Quorum, to whom such information or request shall be made, shall haue full power and authority to attach the said person &c. and to commit him towarde, there to remain without bail or mainprize, till he haue found sufficient surety &c. to give due obedience to the proceedings, decrees, and sentences of the ecclesiastical Court &c. And the like Statute was made 32. H. 8. cap. 7. And by the Statute of 2. Ed. 6. cap. 13. it is provided, That if any person carry away his corn or Hay, or his other prediall tithes, before the tithe thereof be set forth: Or willingly withdraw his tithes of the same &c. that then vpon due proof thereof made before the spiritual judge &c. the party so carrying away, withdrawing &c. shall pay the double value of the tithe so taken, lost, withdrawen &c. beside the costs and charges of the svit &c. And as to these tithes which Canonol. hath above called feudal which wee call impropriate, it is ordained by the Statute of 32. H. 8. 
4. Impropriate tithes at the common Law, are compared with feudal tithes.  c. 7. that they may bee demanded by a Praecipe quod reddat.  Codign. 
Our lawe in all the matters abovesaid consenteth with the Canon-lawe.  Nomomath. 
But what if a man will not pay his tithes in the time of vacation of a bnfice.  Anglonomoph. 
Then the ordinary ex officio may city him to pay them 
Registr. 51. Fitzherb. nat. bre. 52. G. .  Canonol. 

10. The ordinary ex officio may city men to pay Tithes.  That seemeth not to be repugnant to our Law 
Goodal. lib. de lib. Eccles. .  Codign. 
Nor to ours.  Nomomath. 
Now that you haue proceeded so far in matters of jurisdiction, I pray you let me move you for other doubts concerning the same point. Whether is the crime of heresy subject to the censure of the Canon Law only, or to the jurisdiction of all your laws, I pray you show me how, and how far forth it is punishable.  Canonolog. 
There be two things which make heresy: First it must respect and concern the Articles of our Faith: Secondly there must be a stubborn, and pertinacious affirmation: for there must be error in ratione, and pertinacia in voluntate 
Cle. 1.§. porro de sum. trini. : for where there is error, 
1. Two Sorts of heretics, formatus and suspectus.  but not obstinacy, there the party can not be said to be formatus, but suspectus haereticus, and then he holdeth the error inquisitive, but not adhaesiue. But he that is formatus haereticus is thus punished in our Law: he is excommunicated, he is bereaved of all ecclesiastical promotion, he is delivered up to the secular power, and all his goods and lands be confiscated, and taken away from him 
c. ad abolend. de heretic. c. Excommunicamus de haeret. et c. secundum leges eo Tit. lib. 6. . But in two cases their lands are reserved, and left to their children: First, if they reveal their fathers heresy 
c. Vergent. in sen. de haeret. c. vt inquisit. de haere. lib. 6. , 2. 
2. In what case the wife and children of heretics shall enjoy their lands.  If they haue been so long in possession that they may prescribe 
c. vt officium de haere. lib. 6. . But the dowry of the wife of an heretic is not forfeited, unless she do mary him knowing of the heresy 
c. decreu. co. Tit. lib. 6. .  Codicgn. 
Our Law agreeth to that which you haue said: And further prescribeth an other punishment, which you haue not mentioned against such offenders: for it saith, that they shall be burnt alive 
l. quisquis C. ad l. jul. maiest. Et c. vt inquisitionis de heretic. lib. 6. .  Nomomath. 
Yet I haue red in a learned civilian, 
3. heretics by the civil Law not punishable by fire.  that in the whole body of the civil Law it is not recorded, that heretics should be put to death by fire: and therefore he is somewhat bold with the canonists, and calleth them igniuomos canonistas 
Alber. gentle. lib. lecti. 2. .  Codign. 
Indeed our Law as to that point is wholly grounded vpon the Canon 
c. ad abolend. de heretic. .  Canonolog. 
It is not grounded vpon the Canon, for we refer the matter wholly and finally to the secular Magistrate: as your writ de Haeretico comburendo Anglonomoph. doth testify.  Anglonomoph. 
Indeed in our realm in ancient time, he that was to be burnt for heresy, 
4. The Canonist poasteth the punishment of heretics to the common Law.  was first to be convicted of the same before the Bishop of the diocese &c. and ought to abjure it: And if he did after relapse into it again, and were thereof condemned in the said Dioces: then he should be sent to the secular power to do with him whatsoever should please the king 
Fitzherb. nat. bre. 269. . But afterward by the Statute of 15. of king Henry the eight 
15. H. 8. cap. 14. , it was ordained, that he who had once abjured heresy, 
5. The professor of the common Law bandeth back again the punishment of heretics to the Canon Law.  and was relapsed, and was convicted hereof before his ordinary, that notwithstanding the ordinary ought not to commit him to the lay power without the kings writ first purchased hereupon to burn him.  Nomomath. 
Then I perceive the whole act both of adjudging to the fire, and of sending the party to receive that punishment, dependeth now wholly vpon the Canon Law, and the sentence of the Bishop framing the style of his iudgement according to the Canon Law.  Canonol. 
The secular power putteth him to death: but we are discharged of it.  Nomom. 
Nay verily, no more then Nabuchadnezer can be acquitted of exposing the life of daniel to hazard: for he might as well haue excused himself and said, that he did not mean to kill him, but did only commit him to the courtesy of the lions: And as he did not personally put him into the cave,& within the grace: so neither do ye personally thrust these which you term heretics into the fire, nor bind thē unto the stake. Nabuchadnezers punishment I haue read of, which was grievous and horrible: But I do not read of the admittance of such excuse. And when the judge of Iudges shall examine such fiery proceedings, it will be in vain to excuse themselves by the fire, and the chain, and the stake: or by the sheriff and the bailiffs, if the Iudgement haue been wrongful and unjust. It will be like the excuse that Phillip king of Macedonia made, when he was charged with the expugnation and overthrow of the city of Chius: Nequè ego Chium expugnaui, said Prusiam socium& amicum expugnantem adiuui 
livius lib. 32. : for so Prusias might haue said, that he did it not, but only encouraged his men to do it. So Brutus and Cassius might be excused from killing themselves, because they did non inflict the wound, but did will and command others to do it 
Flor. lib. 4. histor. . After as bad a sort Dido cleareth herself of her death, though not any way to be cleared: 
Praebuit Aeneas et causam mortis et ensem:  
Ipsa sua Dido concidit vsa manu 
ovid. Fastor. 3. .  But I will insist no more of this matter. Now resolve me, whether any Church-land be demaundable at the spiritual Law.  Codicgn. 
Religious houses and lands belonging unto them deputed to holy use are comprehended in our Law under the name of Church-land or living: 
1. What things may be termed Church-land by the civil Law.  And all lands which belong to Oratories or private chapels, annexed to the particular houses of lay men, by the authority of the Diocesan, and the lands belonging to them are comprised under the name Church-land or Church living 
C. de epis.& clear. in lib. Orpha. : Likewise that plot or parcel of ground in which a dead man is butted, or wherein his head or any part of him is butted becometh consecrate, and religious, and therefore cannot be mortgaged nor pledged 
ff. de reli.& sump. func. C. quae res oblige. poss. l. 1. : and of such lands our lawe taketh notice and holdeth full jurisdiction.  Canonol. 
But in strict reason such things do belong to the jurisdiction of the spiritual court 
42. Disti. oratorium. .  Anglonomoph. 
These matters are diversly taken in our law: for in action of trespass conceived by the Vicar against the person for the breaking of his close, and for his lambs taken away, whereas the close supposed was the Churchyard parcel of the vicarage of the plaintiff, 
2 Of Churchyards the spiritual court shall hold jurisdiction by the common law.  it was held by the better opinion that in this case wherein the close supposed in the writ is admitted by both parties to bee a churcyard, the spiritual Court onely should hold jurisdiction 
13. R. 2. iurisdict. 19. . And an assize likewise was brought of a house against a person, who pleaded in bar, that he was person of P. and that the house demanded was parcel of his said church, from time out of mind, and that there was sepulture of deade persons there: wherefore Perseis opinion was that the court temporal ought not to hold plea in this case 
44. Ass. pl. 8. : but if the person of A. and the person of B. do contend in suite for a parcel of land, 
3 The right of glebe land is triable by the common law.  the one claiming it to bee his glebe, the other his: it hath been held in this case, that the spiritual court shall not hold jurisdiction 
19. H. 6. 20. . And Bracton likewise affirmeth, that a thing given in frankalmoigne remaineth lay fee 
Bract. li. 5. c. 16. : and by our lawe a prohibition lieth for chantries, 
4 Lands devised not subject to the jurisdiction of the ecclesiastical court.  chapels, prebends, and vicarages 
Fitzh. N. B. 40. G.& 35. b. : and if a man devise lands or tenements devisable, the party to whom the devise is made shall not sue in court spiritual, and if he do the other shall haue a prohibition: and therefore as Bracton saith, the devisee may enter without the licence of the executor 
Bracton ubi supr. Perk. Tit. devis. : but if a devise bee made of goods, and chattels real, 
5 suits for chattels real must be in the spiritual court.  as of a lease for term of yeares, or of a ward, there the suite must be in the spiritual court 
Fitzh. N. B. 43. G. : and if a termor of certain land do devise his crop and die, the spiritual court shall hold plea for this crop 
8. H. 3. prohibit. 19. : and if a man devise corn or other goods to a man, and a stranger will not suffer the executor to perform the testament in this point, they may sue the stranger hereupon in the spiritual court: but if a man take goods devised out of the possession of the executors, the law is otherwise, for then they shal haue an action of trespass at the common lawe 
4. H. 3. prohibit. 28. : but if a man sue another in the spiritual court for a rent reserved vpon a lease of tithes or offerings, a prohibition will lye in such case because it is a lay rent 
44. E. 3. 32 .  Nomomath. 
Let me now know Canonol. when a man granteth to one ius patronatus of the church of Dale, if this title bee controversed in question, whether shall the ecclesiastical court or temporal hold jurisdiction.  Canonolog. 

1 That ius patronatus by the Canon law is determinable in the ecclesiastical court, and that it passeth by the word ecclesia.  Surely I think it is determinable in the ecclesiastical court, because the right of patronage may pass by the word ecclesia: as if a man said unto me, dono tibi ecclesiam S. Petri in Dale, the advowson of the church doth pass 
c. quod autem de jur. patronat. .  Anglonomop. 
The word ecclesia is otherwise taken in our law, for it is most commonly used for a place wherein baptism and the sepulture of mens bodies is celebrated 
34. E. 1. quar. impedit. 187. . And M. Fitzherbert saith, that by this word ecclesia is meant onely a parsonage 
Fitzh. N. B. 32. G. : and therefore if a presentment be made to a chapel as to a church, by the name of this word ecclesia, this doth change and metamorphize the nature of it, 
2 The diuers significations of the word ecclesia at the common law-  and maketh it presently a Church 
17. E. 3. 58. 47. E. 3. 5.& 21 13. H. 4. brief. 870. : and because by this word( church) is meant a church parochial, therfore if a man haue an oratory or chapel within his mannor of Dale and he giveth part of the demesnes of the said mannor to a Chapleine for life to sing there, yet he hath not by this made it a Church, but it remaineth still an oratory, and his freehold: for here was no effectual operation of lawe to force such a change 
36. E. 3. 13. . But if a writ bee brought of a Church in Dale, and in Dale there bee both a Church, and a chapel, yet the writ shall stand good for the reason above shewed 
20. E. 3. Brief. 684. 13. H. 6. 4. 9. E. 3. 451. 22. E. 3. 2. 8. H. 6. 33. : and sometime it signifieth the Church which consisteth of stones, walls, and roof 
8. H. 5. 4. Rolf. : and sometimes the demesnes and profits of the bnfice 
45. E. 3. 4. : but very seldom, if at anytime it is used for ius patronatus. But if as you say, the patronage should pass by these words dono ecclesiam: in all reasonable understanding the patronage is to be distinguished from the Church or bnfice. And therefore Pollard 12. H. 8. 
12. H. 8. 7. Prior. de Hunting. c.  doth well distinguish the interest of the person, 
3 The interest of the patron, person, and ordinary in the church is shewed.  patron& ordinary as in a several thing: the person( saith he) hath a spiritual possession in the church: the ordinary hath charge of the church to see the cure served: the patron ius presentandi to the church; which being well weighed doth clearly bewray the imbecility,& in consequence of your proposed argument Canonol. neither can you by any solid reason of law entitle the spiritual court to jurisdiction in this case, as I shall hereafter show.  Nomomath. 
What say you of this matter Codign.  Codign. 
Wee rely wholly for these matters vpon the Canon law which in these points is very pregnant and copious.  Canonolog. 
It is so in dead: but by that lawe ius patronatus is merely spiritual, and not temporal, as Anglonomoph. would persuade: for it is wholly after a spiritual manner carried& ordered: for though the patronage do arise of three things the foundation, 
4 What things do make a patron by the Canon lawe.  the edifying, and the endowment 
26. q. 7. filijs ca. quicunque 18. q. 2. abbot.  according to the ancient saying patronum faciunt does, aedificatio, fundus: yet it is no temporal thing, because though a man bee condemned, and his goods bee confiscated, yet he shall not lose his right of presenting 
Gl. est. in ver. subject.§ rursus in fi. c. pastor al. in Cle. de re judi. : neither is this repugnant, that to a Church parochial he may present, to a Church collegiate the lawe is, that though his assent go not to the election of the party who is to be the governor: yet our law commandeth that after the election it should bee registered 
c. nobis de jur. patronat. . Yet it seemeth to be spiritual, because if a lay patron do present one, and after will varie and present another: now it is left to the arbitrement of the ordinary, which of them he will admit 
2. dist. c. ecclesiastic. et c. quod autem de jur. patronat. : and he which is so refused by the Bishop, hath no remedy against the second presentee, but he may haue remedy against the Bishop for his unjust refusal or wrongful delay: and his remedy in this case is a duplex querela against an inferior ordinary: and this must be handled in the spiritual court 
Pastoralis ∽. Tit. .  Anglonomoph. 
Yea but the reason of that is given in our lawe, because the right of patronage shall not come in debate 
Regist. 55. .  Canonol. 
This is petere principium, but let me proceed. There is such a mutual correspondence betwixt the patron& the Church, that they may not bee severed either in government, or in jurisdiction: for though the patron hath aliquid honoris, as we said, because he is to haue the first place in the procession 
16. q. 7. piae mentis. : yet he hath also aliquid oneris, for he is bound by our lawe to defend the Church from all oppressions 
17. q. 7. filiis. : and in that regard if he fall into poverty, he is to be maintained de bonis ecclesiae 
Praealleg. c. filijs. .  Anglonomoph. 
These circumstances do not infer the conclusion which you labour for. It shall appear to you Canonologus, by our law and by very strong reason, that the right of patronage or the advowson of the Church, 
5 Ius patronatus is one of the proper objects of the common law.  is one of the proper objects of the common law. First it is a rule with us, that if a man be sued in the spiritual court for a lay fee, a prohibition will lie, that is, for lands and tenements as M. Fitzh. well expoundeth it 
Fitzh. N. B. 40. l. . Now that an advowson is a tenement, 
6 That an advowson lieth in tenor. & lieth in tenor, may by several authorities be avouched: and therfore a tenor ought as well to bee found by office of an aduowosn, as of a mannor 
14. H. 7. 28. {per} Bri. 17. E. 3. 10. : and a lease for yeares may be made of an advowson, and if the lessee alien in fee, this is a disseisin to the lessor 
.7. E. 3. 11. : and 15. H. 7. all the Iustices agree, that an advowson lieth in tenor 
15. H. 7, 8. . And for that cause, if one hold and advowson of the king, and grant it to another without licence, the grantee shall pay a fine 
21. E. 3. 31. 20. E. 3. Estoppel. 187. . And generally vpon any surmise, that a man is sued in the spiritual court for a temporal thing, a prohibition will lye 
Fitzh. 43. h. . Now the advowson is temporal, though the admission& institution be spiritual.  Nomomath. 
Let me ask you further this question: if a man swear to me that he will make me a feofement of certain land before such a day, and he doth it not, whether may I sue him in the spiritual court pro laesione fidei.  Anglonomoph. 

1 Punishment p●● laes●o●e fidei concerning a temporal act, is not to be adiudged in the ecclesiastical court.  No: for if you do, a prohibition will lye by our law, because the act which is to be done is a temporal act,& is to be tried by the common law 
38. H. 6. 29. Fitzh. 43. D. 2. H. 4. 15. 24. E. 1 Br. praemuni. 16. D. S. lib. 2. c. 24. : and if men be sworn to give true evidence to a jury, and they do so, whereupon certain persons be indited of some misdemeanour, if they which be indited do sue them that gave evidence against them in the spiritual Court for this diffamation done with an oath, they may make a prohibition 
Fitzh. N. B. 42. F. 11. H. 4. 88. prohib. 12. : but if any perjury be committed in a spiritual court, 
2 perjury in an ecclesiastical court, punishable in an ecclesiastical court.  there the spiritual court shall haue jurisdiction 
Stat. de circumspectly. agate. 13. E. 1. 5. Elizab. c. 23. &c. 9. : but the ordinary in temporal cases may punish the party which hath committed perjury ex officio, though not at the suite of the party 
20. E. 4. 10. : and if a woman haue title to sue a cvi in vita, and she maketh oath to the tenant of the land, that she will not sue any cvi in vita against him, if after she sue a cvi in vita, and thereupon the tenant sueth her in the spiritual court pro laesione fidei, shee may haue a prohibition, because the oath toucheth a temporal thing, namely land 
Fitzh. N. B. 42. l. 4. H. 3. prohibit. 19. Bracton. lib. 5. c. 2. . And if a man swear to one that he will pay to him twenty pound which he oweth him at a certain day, and at the day he faileth of the payment, he may not now be sued in the spiritual court for the perjury, because an action of debt lieth at the common law for the principal 
22. E. 4. 11. H. 4. 88. prohib. 12. . But 34. H. 6 it is said, that if a man buy an horse for five pound soluend. such a day, and sweareth to make payment at the day, but when the day is come faileth of payment, an action of debt lieth at the common lawe, and an other at the spiritual lawe pro laesione fidei, and a writ of prohibition lieth not because they be two distinct things 
34. H. 6. 30 Br. prohib. 2. : yet 2. H. 4. is that a prohibition lieth in such case 
2. H. 4. 10. .  Canonolog. 
But Lindwood sheweth that a libel may be so framed, that no Prohibition will lye in your last recited case: as namely, the libel may be, ( That the party hath damnablie broken his oath, pretending that he was not bound by it 
Lindw. in capit. aeter. sanctio. verb. periur. .  Anglonomoph. 
That is but a weak support of the spiritual jurisdiction: 
3. Linwoods authority touching punishment pro laesione fidei in temporal matters at the ecclesiastical Law is not admitted.  for it is one thing to be punished for perjury, an other for his irreligious pretence. And surely I take it to be agreeable to all laws, that pretences and intents are not punishable, but only in crimine laesae Maiestatis. And a man may sue a Prohibition directed to the sheriff, that he shall not permit, nor suffer the queens lay subiectes to come to any place at the Citation of Bishops, ad faciend'aliquas recognitiones, vel sacramenta praestanda, nisi solùm in causis matrimonialibus et testamentarijs. 
4. The Barrister disproveth the general citations of Bishops ad sacramenta prestanda by the common Law.  And M. Fitzherb. thinketh that these general Citations, which Bishops make to city men to appear before them pro salute ainae, without mentioning any special cause is against Law 
Fitzh. nat. bre. 41. A. .  Nomomath. 
Why may they not use such general Citations, 
5. Nomomathes encountereth him in this point.  as well as a Iustice of peace by your Law may make a precept to bring one before him, to answer to such things as shall be objected against him without showing any special cause 
Crompt. just. p. 131. et 132.  And if by your Law they can receive no oath but only in matters matrimonial and Testamentarie, then it must needs be intended, that though their process be general ad sacramenta praestanda, yet it is specially meant of matrimonial or Testamentarie causes: For I remember a good rule in the Canon Law to this purpose: Quando constat de lege, sufficit generalis allegatio 
28. q. 1. sicut enim in fi. . But what say you to this matter of oaths Codicgnostes.  Codicgn. 
Our Law differeth little or nothing from the Canon law in the discourse of oaths. 
6. The civil Law agreeth with the Canon, in matter of oaths.  And as the canonists, wee make two sorts of oaths, Conuentionale and Iudiciale: Conuentionale, or Promissorium, is when we swear de futuro that we will give some thing, or do some thing &c. 
Bartol. in l. si quis ff. de fid. instrum.  Iudiciale is when the judge for the trial of the truth of a controversy, and the infourming of his own conscience urgeth the party to take an oath 
ff. eo. Tit. l. ius iurand. . Of both these riseth an action triable well enough by the Canon Law: for in this matter the Canon is the stern and motive of our judgements: and therefore we hold the rule of the Canon Law firmly: Praestans et recipiens soldan, contra Canones punitur 
Gl. verb. paena. capi. gravis. de censi. .  Nomomath. 
Well, I will trouble you no further about questioning of things belonging to several jurisdictions, but will now pass to inquire somewhat of such things whereof an Action of the case will lye.   

The second Dialogue. Of Actions vpon the Case.  NOnomath. 
I haue some time marveled Codicgn. wherefore an Action vpon the case, which you term actionem iniuriarum, should not haue a special name, as well as other actions, when as at the Common Law every action beside this hath his special name: As an action of debt, of account, of Wast, of Detinue, of covenant, &c. And in your Law there is Actio ex stipulatu, actio empti, actio depositi, actio de pauperie &c. I pray you therefore let me know the reason hereof.  Codicgn. 
What is more ebbing and flowing then mans invention: for some things it hath words too many, for some it wanteth names: Therefore funeral, when he sought for an apt name for that age which ensued the four famous ages, being this last age of the world, and worse thē the iron age, he nameth it by giuing it no name,( for his invention could not find out any proper appellation) and thus resolveth: 
— quorum sceleri non invenit ipsa  
Nomen, et a nullo posuit natura metallo.  And because our sage Maisters of the Law could not devise as many several names, as there be several injuries: for what dictionary could contain so many names? and because the name of the sign should be ample, and large enough for the thing name or signified: 
1. The reason is shewed wherefore actio iniuriarum hath so general a name at the civil Law.  therefore they devised that actio iniuriarum might serve for all wrongs, for which they could not frame particular names.  Anglonomoph. 
indeed as D. Stephens his water was fit for many diseases, and yet had never any special name, 
2. The Barrister compareth an Action vpon the case at the common Law to D. Stephens his water.  but was generally termed Doctor Stephens his water: so likewise an Action vpon the case stretcheth as a remedy against many offences: Yet it hath no other name then an Action vpon the case. And it is therefore so termed, because every mans case must be in that action specially and at large set down: for in that action the writ ought to comprehend the special matter, as well as the declaration 
7. H. 6. 47. : wherefore in an Action vpon the case brought against one who was retained to buy a Manor for the plaintiff, which he after purchased for himself, in deceit of the plaintiff: and the plaintiff did not show of whom the Manor should be bought in the writ, but only in the declaration, the writ was abated 
16. H. 6. Action sur le case 44. 48. E. 3. 6. Brief 627. 33. H. 6. 26. 11. H. 6. 2. 22. H. 6. 53. .  Nomomath. 
I pray you satisfy me in this: If a man be entertained, or lodged in an inn, and some of his goods be taken from him out of the inn by a stranger, whether may he haue an Action vpon the case against the innkeeper.  Anglonomoph. 
doubtless he may, if it were a common inn in which he was lodged 
2. H. 4. 7. 5. Mar. 158. Dyer. . And if the party so prejudiced do bring an Action vpon the case against the host, 
1. An Action vpon the case lieth against the keeper of a common inn if goods be imbeasiled.  it is no plea for him to say that the plaintiff did not deliver any goods unto him: or that the plaintiff himself had the key of the chamber. And an Elegit hath been awarded in such case of the land, which the defendant had the day of the iudgement given, and not the day of the writ brought. And a Capias ad satisfaciendum lieth not, because it was a laches, and no wrong 
42. E. 3. 11. : And therefore the words of the writ be pro defectu ipsius B. 
Fitzh. not, bre. 94. B. : But the opinion of Hill, is 11. H. 4. that if the innkeeper in such case do notify unto the guest, that he can not attend vpon him, and notwithstanding he will needs be harboured there at his peril, the innkeeper is discharged 
11. H. 4. 45. per Hill. . And 22. H. 6. the difference is taken, 
2. If a stranger lodge with me by my consent, and do imbeasill goods, the innkeeper shall not be charged.  that if a man do lodge in chamber with me by my consent meerlie, and not by the appointment of the host, and he robbeth me, the host shall not be charged: Otherwise is it if he be harboured there by the host. And if my seruant rob me, the host shall not bee charged 
22. H. 6. 21. per Curiam. . And 39. 
3. If my seruant imbesill my goods, the innkeeper shall not be charged by the common Law.  H. 6. it is said, that an Action vpon the case lieth against the innkeeper, if he will not lodge a man; and the Constable may enforce him thereunto. But Danby there holdeth, that he is not bound to give bread( or prouander) to his horse without present money paid in hand 
39. H. 6. 18. .  Codign. 
By our Law, 
4. By the civil Law the innkeeper is to be charged with action, if his seruants steal goods.  if through the negligence of the seruants which wait, or attend in the inn, if any thing be stolen out of the chamber of the guest by any such seruants, the Master or innkeeper himself is to be impeached by way of action, and he whose goods are stolen may recover double damages against him 
ff. si ad vers. nan. l. 1. : because the receipt of such goods into the inn is an implicative promise, that the goods shall be safe 
ff. furt. adu. nan. can. sta. l. 1. . So likewise if a man haue a Ship wherein he useth to transport& convey men or goods into foreign nations, 
5. If through the default of the Master of the ship goods be stolen, the owner of the ship is to make recompense.  and hath appointed a Master of the said ship, by whose default or wilful offence the goods of some that are in the ship are imbeasiled or impaired, an action in this case will lye against the owner of the ship 
ff. de exercit. acti. l. 1. : for the Master of the ship is he cvi totius navis, anchora, et cura commissa est 
ea. l. 1.§. Magistrum. . And in the Tertorike or almain language, such a person is called by the name of Stir-man: and the owner of the ship is therefore in this case charged, because he prefected him, and made him Master of his ship 
ca. l. 1.§. non autem. , and because to him the daily profits, rents, and gains of the ship do appertain and come 
ca. l.§. exercitatorem. .  Canonolog. 
I do not remember any thing in our Law contrary to that which you haue said.  Nomomath. 
I would be resolved of this Codignostes, whether according to your Law in all contracts there must be a mutual consideration on both sides.  Codicgn. 

1. By the civil Law it is not necessary that there be mutual consideration in contracts.  It is not necessary, that there be mutual consideration, but so there be a mutual consent, it is sufficient in our Law, and it is therfore called a contract: because by couenanting diuersa voluntates in vnum contrahuntur 
Instit. de actio.§. 1. Gazal. verbo contractus. . D. Baldus noteth, 
2. Three sorts of contracts by the civil Law.  that there is a triple kind of contract. A proper contract, an improper contract, and a most improper contract. The proper contract, 
3. What is a proper contract by the civil Law.  is when both parties are ultro citróque bound 
l. Labeo.§ contrac. ff. de verb. signif. : As if I buy of you a Horse for five pound, I am bound to give you the money, and you are bound to give the horse unto me. 
4. What an improper contract is by the civil Law.  An improper contract, is when one of the parties only is bound by the contract: As in a gift of goods, or chattels, the donor only is bound to deliver the things given 
l. Aristo. ff. de donat. can. mor. . And so when one lendeth to an other, he which borroweth is only bound ad tantundem reddendum 
ff. si cer. pe. l. 2. . The most improper contract, 
5. What a most improper contract is by the same Law.  is when neither of the parties is bound, but a bond or contract is dissolved and defeated: As when a man selleth to an other a silver Cup for three pounds, to be paid at such a day,& the vendour delivereth the cup to the seruant of the vendee, who presently runneth from his Master: so that the vendee sueth the vendor for the cup,& the vendor sueth him for the money, if depending these two several suits, both the parties do after friendly agree, that suits shall surcease betwixt them, and that the one of them shall be quiter against the other, this transaction as we term it is a contract, though most improper 
Saly. in lib. siue apud acta. C. de transact. . Likewise when a man will acquit one of money which he oweth unto him vpon a contract, which in our Law is called acceptilatio: as when I say unto one with whom I haue bargained: Haue not you received of me all the money which I did owe unto you by way of contract? and he aunsweareth: I haue received it all, whereas in truth he hath not received a penny of it: this is a good acquittal, and one of the most improper contracts 
Instit. qui. mo. tol. oblige. et in l. ubi pactum. C. de transact. per Bar. .  Anglonomoph. 
Our Law meddleth with no contracts, but such as you haue termed proper contracts: 
6. The Common Law admitteth no contracts, but such as be proper.  For our Law requireth in all contracts a mutual consideration, and one part of the contract challengeth and begetteth the other. And therefore the case was thus: The seruant of A. was arrested in London vpon a trespass, and two which did know his Master did bail him: and after A. promised them for their friendship to save them harmless of damages and costs, if afterward they were charged: And so it befell, that afterward they were charged: yet it was held that the Action vpon the case would not lye upon the promise, because there was no consideration, for the bailing was of their own head, and was executed before the assumpsit: But if the Master had requested before, and assured afterward then perhaps the law would haue been otherwise: as in consideration that you haue married my daughter at my request I will give you an hundred pound. This is a good consideration because the marriage did ensue my request, and in like sort land may be given in frankemarriage after the espousals 
10. Eliz. 272. Dy. . And so whereas Oneley brought an action vpon the case against the earl of Kent and his lady, and declared vpon an assumpsit of the lady, whilst she was sole, that in consideration that he had taken great pains and had expended 1500. li. about her business and suits, that she would repay the 1500. li. and beside that twenty pound more. This was held a good consideration 
19. Eliz. 356, Dy. Oneleys case. : and 29. Eliz. the case was such: A man being found in arrearages vpon his account did promise to the dettee that if he would forbear him per paruum tempus, that he would pay him the money without further delay, and the dettee did forbear him accordingly, and after vpon this assumpsit brought an action vpon the case: and it seemed to three of the Iustices of the common pleas, that the action would not lye, because that paruum tempus was no good consideration, neither could it be beneficial to the party: but one of the Iustices said, that if the dettee had brought an action vpon the case without any consideration alleged, and had proved the debt, that would haue sufficed for that had been an assumpsit in law: and that there must be a reciprocal consideration in such case may most clearly and evidently be proved, by 44. E. 3. A writ of debt was brought, and the plaintiff declared that the defendant did owe unto him five pounds for a house which he had sold unto him: the defendant said, that there was a covenant betwixt the plaintiff& the defendant, that the pl should remove the same house at his own costs& charges within a certain day to a certain place, and when he had so removed it, that then the defendant would pay him his money, and that the house( or the frame of the house) was not as yet removed: and this was held a good plea 
44. E. 3. 28. . And where two considerations are to be accomplished, the performance of them both is to bee averred: Wherefore the case was, that in an action of trespass the defendant pleaded a concord, that he before a certain day should make certain windows, and should pay certain money, and he said that he payed the money by virtue of the concord before the day, and demanded iudgement si actio &c. But he spoken nothing of the making of the windows, and the plaintiff replied, Nul tiel accord, and it was for the plaintiff, and it was held by all the court a ieofaile. For when they accorded that the defendant should do two things, the concord is not performed, unless both be done, and so the matter of the plea is not good, and therefore the replication cannot make it good 
6. H. 7. 10. : And if I buy a horse of you for six pound, you may detain the horse till I haue payed you 
10. E. 4. 18. : and so if one buy an horse of an other in Smithfield and do not pay to the vendor money presently, but doth onely promise it, the vendor may sell it to another immediately, and the other can haue no remedy against him: for otherwise he may be compelled to keep his horse in perpetuum against his will 
17. E. 4. 1. per Choke. : And to this agreeth the book of 21. H. 7. where it is said, that in the bargain it is implyed, that the bargainee shall pay the money presently, otherwise he shall not haue the thing sold; but if it were for a certain day, the money were not to bee payed before the day, because the bargainor hath given unto him express liberty to pay at any time within the time prefixed 
21. H. 7. 6. : And so is the book of 28. H. 8. that a contract or bargain is not good without present payment, unless there bee a certain day limited, so that one of the parties may haue an action of debt for the money, and the other a writ of Detinue for the wears 
28. H. 8. 30. Dy. ; and if a man assure and promise to one that he will make for him certain wanes for carriage &c. and he taketh parcel of the money before hand to do it, and after he doth it not according to his assumpsit, the other may haue an action of trespass vpon his case 
Fitz. N. B. 94. A. : so an action vpon the case was brought because the defendant promised to the plaintiff, that if the plaintiff would discharge I.S. of execution, in which he was at the suite of the plaintiff, that then he would pay unto him his debt, and in truth the promise was made to the wife of the plaintiff, to which the husband agreed, and thereupon he discharged the party, and it was ruled by the court, that the action was maintenable because a feoffment of lands or gift of goods is available to the wife if the husband do not disagree, so it is of an assumpsit 
27. H. 8. 24. 25. .  Nomomath. 
Trouble yourself no further Anglonomoph. let me ask this one question of Codicgn. whilst it resteth in my mind. Suppose that I haue hired a ship or galley to transport my family, and some of my household goods, by lawful permission, and I agree to pay for the carriage of every poll or person of them a certain sum of money, admit that three or four of them die in the ship, whether shall the owner of the ship haue the entire sum of money, or shall it bee apporcioned for them, that be dead before they be brought to the land 
ludovic. de Rom. in singulari. .  Codicgn. 
To clear your doubt this diversity must bee understood: if the owner of the ship did make a covenant with you, 
1 That no fare ought to be payed for them that die in a ship, if the master of the ship did assume to bring them safe to shore.  that he would bring them safe to such a place, then surely you ought to pay no fare for them that bee dead 
Id. in d. singu. ad regu, predict. : but if the covenant were to take them into the ship, and to carry them to such a place, thē the law will be otherwise: and so if a child be born in the ship whilst it is vpon the sea, 
2 If a child be born in sea-faring nothing is to be paid for that child.  there is nothing due in respect of that child 
ff. locat. l. si adest.§. si quis mulier. .  Canonolog. 
All contracts are bonae fidei, and what is a contract but stipulatio verborum? so that it is to be taken as the words do sound, no violence being offered to apparent equity. 
Pecki. ad reg. jur.   Anglonomoph. 
In our law there is a case not much swerving from this purpose, if we stand not too much vpon the common and verbal way to go to the end of a question, 
3 The barrister putteth a case of carrying a horse safe and sound over Humber.  I. B. did declare by bill that A. at a certain day and year vpon Humber did assume to carry his horse being taken into his barge over the water of Humber sound and safe, and the said A. did surcharge his barge with other things, by which mean his horse perished in the water, and this was held a good cause of action 
22. Assis. pl. 41. : but surely in this case without ferrying over the horse there was nothing due unto the bargeman by reason of the covenant.  Nomomath. 
Canonologus, you haue yet spoken nothing concerning the necessity of mutual consideration in bargains, I pray you let us hear the determination of your law hereupon,& then we will insist no more vpon this point of contracts.  Canonol. 
Our law doth not refuse or abiudicate the kinds of improper contracts, 
4 The cannon law agreeth with the civil in cases of improper contracts.  as by the report of Anglonomoph. the common law doth, for if two should contend for an ecclesiastical bnfice, as namely for the advowson of a parsonage or prebend, and one of them agreeth with the other, that he shall haue one turn of presenting, and the other an other turn, and so successiuè per alternas vices, here though there bee no consideration properly: yet in our lawe this is a good contract and a good consideration: but if one of them should haue given to the other twenty pound to haue had the presentation wholly,& solely to himself, this had been voided in law and simoniacal 
c. si quando cleric. de offi. de leg. &c. statuimus de transac. nisi esset de preben. .  Nomomath. 
How doth your law Anglonom. punish defaults for want of skill, as suppose that I do hire one for a certain sum of money to make for me a frame or fabric of an house of good timber, well seasoned, and in a certain form, and he maketh it of very weak timber, ill seasoned, and very rudely in form, whether in such a case will an action vpon the case lie against him or no.  Anglonomoph. 
I doubt not but it will, for where a man undertaketh to do a thing well& perfectly, and through ignorance and default of skill he faileth, remedy is given by an action vpon the case: for the case was 11. R. 2. that in an action vpon the case, the plaintiff declared that at a certain day and year in London there was a covenant made betwixt the plaintiff& the defendant, that the defendant should cure the pl of a certain malady,& he took of him for it a certain sum of money before hand, in consideration whereof the said def. did undertake to cure the pl of his malady, 
1 That by the common law want of skill is to be punished by an action vpon the case if there be an assumpsit either implicative or expressed.  who ministered unto him medicines contrary to his disease, whereby he was empeired and became worse then he was before 
11. R. 2. Act sur le case 37. : so 19. H. 6. an action vpon the case was brought because the def. did assume to cure the plaintiffs horse, and that he adeo negligenter,& improuidè imposuit medicinam, quòd equum &c. And it was there said by Newton, that if I give counsel to a man to give his horse certain medicines, who doth it,& thereupon the horse death he shal not haue an action, unless I had undertaken to heal him, which must be traversed: And Paston granted this,& said, that if I haue a disease in my hand, and a man applieth a medicine to my arm, by which negligence my hand is empeired, yet no action will lye unless he had undertaken to cure it 
19. H. 6. 49. ;& as I take it, so is that case to be understood which M. Fitzh. hath: if a smith do hurt my horse with a nail, I may haue an action vpon the case though he did not warrant the well shooeing of him: but he saith not( though he did not assume) for in dead the shoeing of him is an implicative assumpsit,& if there were no consideration, but the smith did it of mere good will, I do not think, that any action will lye 
Fitz. N.B. 94 D. 14. H. 6. 18. 46. E. 3. 19. 48. E. 3. 6. 21. H. 6. 55. : so that the action lieth not merely and directly for want of skill, but because the assumpsit was not accomplished for want of skill.  Codign. 
But by our law the want of skill is a sufficient ground of action: 
2 That by the civil law want of skill onely is punishable.  for if in the case proposed of the making a frame of a house, it be not done well and artificially, our law is that the artificer shall render damages in toto, but if some part be well done, and some ill, so that it is evident that if the workman had used convenient diligence, all of it might haue been well consummated, so that there is no default in skilfulness but in carefulness, then the workman shall not bee condemned in toto, but in tanto that is for so much, as is not well done 
Gazalup. in ver. ignorat. .  Canonolog. 
The rule of our law is, that crassa& supina ignorantia non excusat 
Ber. in c. regni. fiuit. de ordi ab epi. qui refig. epi. .  Nomomath. 
Let me know this of you Codicgnost. when one man through fraud and deceit ouereacheth another, 
3 By the cannon law Crassa& supina ignorantia non excu. sat.  whether is this punishable in your law as a thing injuriously done.  Codicgnost. 
Yes if he do cirumvent him dolo malo. 
1 circumvention dolo malo punishable at the civil law.   Nomomath. 
It must needs be so intended: for I am sure your Law reputeth no deceit to be good.  Codicgnost. 
Yes, there is a distinction in our Law of Dolus bonus, 
2. A difference at the civil law betwixt dolus malus, and dolus bonus.  and Dolus malus. Dolus bonus, is when a man doth machinate or devise any thing to entrap a thief, or a traitor 
ff. de leg. 2. lib. cum pater§. Titia. , and such deceit may not properly be termed fraud, but it may more fitly be termed by the name of Solertia, or cunning. Such a kind of cunning is much used in war-fare, by which more victories are achieved then by strength of hand. To which purpose I remember certain verses of an uncertain author, that may well be accommodated to this purpose: 
nile refert Armis conting at palma dolóue,  
Nam dolus, an virtus fuerit quis in host requiret.  But Dolus malus is a craft or subtle devise used to the deceiving of an other 
ff. de do. mal. l. 1.§. 1. , or to frustrate the Law 
ff. de leg. l. contra legem. : As the Law prohibiteth a man to give any thing to his wife. And Titius giveth a horse to Sempronius, who giveth it to the wife of Titius by the secret compact of her husband 
l. si sponsus in pr. ff. de dona. inter. virum et uxor. , this is done in fraudem legis, because the purpose of the giver at the first was to give to his wife. But if there be a Statute, that every one which guideth any wain over such a bridge being fraught with carriage, shall pay iiij. d', and the party causeth all the things in the wain, when he cometh to the bridge, to be carried over the bridge on mens backs, here is no defraudation of the Law: But if he should give iiij. pence for the carriage over the bridge, but not currant money, now the Law should be defrauded 
jo. in§. penult. Insti. de ●dop. . And when a man is prejudiced by the fraudulent dealing of an other man, he may by our Law haue an action against him, which is called actio doli, an action of Deceit.  Canonolog. 
indeed the difference of Dolus is used likewise in our Law. And we haue a rule of that which you haue termed dolum bonum: Frangenti fidem, 
3. The same difference the common Law observeth.  fides frangatur eidem 
23. q. 1. noli existimare C. de pac. l. cum proponas in glow. Accur. . And likewise an example of it used in our law: namely of Salomon, who did use such cunning betwixt the two harlots, in searching out who was the true, and natural mother of the child. But the deceit, which of you hath ben termed dolus malus, is in our Law nomen reatus, which it doth punish, as being done against the Law: for qui peccat, non peccat de legis authoritate 
23. q. 4. qui peccat. .  Anglonomoph. 
That deceit which of ye both hath been termed dolus malus, 
4. Dolus malus punishable at the common Law by an action vpon the case, or a writ of Deceit.  doth not in our Law escape punishment: but for the more strong inhibiting and repressing of it, it doth afford a double remedy against such as endamage others by deceit: namely, either a writ of Deceit, or an Action vpon the case. For if a man play with an other at dice, and he hath false dice, with which he playeth, and winneth the other mans money, he that loseth his money in such sort may haue an Action vpon the case for this deceit. And in other like cases an Action vpon the case, or a writ of Deceit will lye, at the pleasure, and election of the plaintiff. And if I present one to a Church, whereof I am Patron, to the ordinary, and one T. disturbeth me: wherefore an other man purchaseth a Quare impedit in my name, retournable in the Common place( I not knowing thereof) against the said T. and after causeth the writ to be abated, or me to be nonsuit in the action, I may haue a writ of Deceit against him 
5. 5. E. 3. Quare impedit 37. 20. H. 6. 20. Fitzh. nat. bre. 96. A. . And in every case an action vpon the case is maintenable against him which sueth an original in the name of the plaintiff against his will 
7. H. 6. 45. . So if a man forge a statute merchant in my name,& sue a Capias thereupon, whereby I am arrested, and had in execution, I may haue a writ of Deceit against him that forged it 
19. H. 6. 44. 58. 34. H. 6. 19. Fitzh. Nat. br. 96. B. . So if the Warden of an Infant vouch one by covin, who is not sufficient, or pleadeth some bad plea, whereas he might haue pleaded a better plea, the Infant shall haue a writ of Deceit against him, and shall recover the full value in damages 
9. E. 4. 34. . And 11. H. 6. a writ of Deceit was brought against an attorney for acknowledging a satisfaction, whereas his master was not in truth satisfied 
11. H. 6. 34. . And in a Praecipe quod reddat, if the sheriff return the tenant of the land to be summoned, whereas in truth he was never summoned, whereupon the tenant loseth by default vpon the grand scape returned: Now the tenant may haue a writ of Deceit against him that recovered, and against the sheriff for his false return 
Fitzh. Nat. bre. 97. C. : But the writ of Deceit in this case doth not determine the right of the land, but doth only defeat the iudgement 
35. H. 6. 44 18. E. 4. 11. 33. H. 6. 43. 41. E. 3. 2. 43. E. 3. 31. 50 E. 3. 18. . And 5. E. 4. is that no damages in this case shall be recovered against the sheriff, but he shall be only fined 
5. E. 4. 49. . And if a man recover in a writ of Wast by default, whereas the defendant was never summoned, the defendant in this case may haue a writ of Deceit 
20. E. 3. deceit 5. 29. E. 3. 54. 48. E. 3. 59. 19. E. 2. deceit 56. 19. E. 3. deceit 3. . And if a man bargain with an other, and assume vpon consideration to enfeoff him of certain land, and he enfeoffeth an other: he to whom the assumpsit was made may haue a writ of Deceit 
20. H. 6. 36. 16. E. 4. 9. Fitzh. Nat. br. 98. F. , or an Action vpon the case at his pleasure 
3. H. 7. 14. 2. H 7. 11. . And if one sell to an other a Horse which he knoweth to haue a secret disease in his body: or selleth certain quarters of grain, which is full of gravel, a writ of Deceit lieth 
20. H. 6. 36. . So 13. H. 4. a writ of Deceit was brought for selling a certain quantity of wool, and warranting it to be 50. sacks, whereas it wanted of that measure: the defendant pleaded in bar that it was weighed before the sale, and that the seruants of the plaintiff being his factors did accepr it, and carried it beyond the sea, whereupon the plaintiff demurred 
13. H. 4. 1. . And if a man lose his land by default in a Praecipe quod reddat, whereas he was never summoned, and die, his heir may haue an action of Deceit, and shall haue restitution of the land 
8. H. 6. 5. per Rolfe. 15. E. 3. deceit 43. 18. R. 2. deceit 50. Fitzh. Nat. bre. 98. Q. . And 1. E. 3. in the book of assizes it is said, that if a recovery in such case be had against the father by default, whereas in truth the father was dead at the time of the recovery, the heir may avoid this by writ of deceit, or Error 
1. Ass. p. 16. . And whereas there be two tenants for life, the remainder to the heires of one of them, and they both lose by default being not summoned, and the tenant for life death, the suruiuor shall haue a writ of deceit for the whole: Otherwise it had been if the recovery had been against the tenant for life only by default 
8. E. 3. deceit 7. .  Nomomath. 
You haue sufficiently discussed the point of deceit; Now I would crave your opinions of an other matter. Suppose that a man by slanderous and opprobrious speeches is impeached, and his good name impaired, this being but a verbal injury: whether do your laws inflict punishment vpon such as offend by contumelious and reproachful speeches or no? and what punishment do they inflict?  Codicgn. 

1. Contemptuous speeches are not punishable by the civil Law.  Such outrageous speeches either proceed of pride, and tend to contempt,& against such the Law alloweth no remedy, because the party himself may frustrate them by contempt: Therefore the saying of the Rhodians in the senate did argue wisdom: Superbiam, verborum praesertim, iracundi oderunt, prudentis irrident: vtique si inferioris aduersus superiorem est, capitali paena nemo unquam dignum iudicauit: etiam Deos aliqui verbis ferocioribus increpant, nec ob id quenquam fulmine ictum audimus 
livi. lib. 45. . The disgrace, especially of words, ireful men reuenge with hatred, wisemen with laughter: yea though it happen that the injury be done by an inferior person to his superior, and no man ever thought such injury worthy of capital punishment: even the Goddes haue of some been reviled by insolent terms, yet we do not hear that any man hath been stricken with thunderbolt for that fault. 
2. Opproprious speeches which proceed of malice are punished.  But if the contumely do rather flow from malice then from pride,& tend rather to discredit then to contempt, the case is altered, and then a capital punishment hath in ancient time been inflicted, if the fault were public. For of the romans S. Augustine saith thus: Romani probris et iniurijs Poetarum subiectam vitam famamque habere noluerunt, capite etiam puniri sancientes tale carmen condere si quis auderet 
D. Augusti. lib. 2. de civit. dei c. 12. : The romans would not haue their life& credit subject to the reproaches& injuries of Poets, making it capital for any to devise a slanderous libel. And he citeth the words of Scipio in another place: Nostrae duodecim tabulae cum perpaucas res capite sanxissent, in his hanc quoque sanciendā putauerunt, si quis actitauisset siue carmen condidisset, quod infamiam faceret, flagitiumue alteri 
D. Augusti. lib. de civit. dei 2. c. 9. Cicer. lib. 4. de rep. .  Nomomath. 

3. It is objected that the grecians did tolerate sarcasmicall speeches against wicked men.  Yet the grecians did allow such taunts and biting sarcasmicall speeches, as the same S. Augustine reporteth 
D. August. ibidem c. 9. . And Socrates did not take it grievously to be noted of Comoedians, for which he giveth this reason: Si merito reprehenderint, emendabimur: sin falsò, tum illa nihil ad nos attinebunt. And it seemeth to keep men in awe, and to restrain them from offending, when as wicked men well deserving infamy, are touched by such reproachful inventions.  Codicgn. 
Your three arguments against my assertion are but three words, grecians, Socrates, Terror; to which by your permission I will particularly answer. The grecians did many times sleep, when the romans did awake,& in matter of ambiguity the romans were by many degrees more to be imitated then the grecians: Yet the grecians did not always suffer this licentious rage& invective of Poets. For when Aristophanes in one of his comedies would make known unto the people the extorcious& tyrannous spoils of clear, a man of high estate 
Aristoph. in Equit. , he was so inflamed with rancour against him, that when he could hire none for money to personate clear, he performed the part himself,& did with such indignity& disgraceful terms abuse Cleō, that clear pursuing the matter against him, he was fined 5. talents: and as himself confesseth, though he gained much by his acted comedy, yet he lost fully as much by his fine: And as himself further confesseth( to express it in Latin) reuomuit quantum hauserat 
Aristoph. in Acharnens. , being a tart-tounged detractor, whose works are scarselie to be red, unless a man would taste the gull of bitterness, much less to be imitated, and( as vives censureth him well) multa per ebrietatem conscripsit 
ludovic. Vi. in comment. ad lib. 2. de ciu. de. c 9. . And whereas he was corrupted by money received of Anitus and Melitus, the enemies of Socrates, 
4. Aristephanes is condemned for his bitter detractions.  to scourge and lash Socrates in his comedy called Nebulae,( which the same vives pretilie termeth fabulam nebulonicam) with contumelious speeches, Socrates in this should not haue been patient, because it was crimen facto non leave, exemplo admodum grave: But Plato, who was more exercised then Socrates in matters of common weal, did banish out of his common weal such railing Poets 
plate. lib. 2. de rep. . And whereas you think it convenient to salt the corrupt manners of men by such piercing speeches, that they may fear to offend: the truth is, such salt is very unsavoury, and such courses very corrupt: for if they be suffered to taunt Hyperbolus a lewd fellow, they will not spare Pericles an excellent man,( as Cicero well affirmeth in the person of Scipio 
Cicer. lib. 4. de rep. :) for he was likewise more then nipped of Aristophanes, and Eupolis. And S. Augustine reproveth such means of reproving, saying gravely, wisely, and divinely: judicijs ac Magistratuum disceptationibus legitimis propositam vitam, non poetarum ingenijs habere debemus 
D. August. d. li. 2. c. 9. : And disorderly persons, as Cicero saith well, a censore melius est quàm a poeta notari: rather of a Censor which is Magister morum: then of a sour satirist or gibing comical-poet, which is Corruptor morum,& such faults are rather to be rebuked of a preacher curing with his zeal, then scurrilously touched of a prater wounding with his style: for such carpers ought to take religious heed least tincta Lycambeo sanguine telagerant: 
5 The deuisors and publishers of libels punishable by the civil law. 6 The canon law is severe against such.  But that I may show what our laws haue ratified touching this abuse: if any man do devise any slanderous libel against one,& it happeneth that another findeth it, and he doth not cancel it& tear it in pieces, but doth publish it to others, he is punished with capital punishment 
ff. de iniur. l. lex torm. ent.§. si quis liberum. , and so is the author likewise punished 
Azo. in sum. C. de iniuri. .  Canonol. 
Wee account in our law such detraction to be summam iniquitatem,& the censure of our law is that omnis qui detrahit fratri suo homicida est 
c. 1. de maledi. 6. .  Anglonomoph. 
Our law is to charitable dealing a mother, and therefore it alloweth the administration of goods circa funeralia, though it be done by a stranger, who hath no authority to intermeddle 
21. H. 6. 28. : because it is a work of charity 
21. E. 4. 5. : but slander and diffamation, 
7 Reprooachfull speeches punishable at the common law by an action vpon the case.  which blemisheth the good name of others it detesteth and utterly disfauoureth, condemneth,& punisheth as a stepdame unto rancour& violent speeches the abortive children of malice. Wherefore an action vpon the case will lie at our law for calling the plaintiff thief 
27. H. 8. 22. : and for calling the pl a false and perjured man 
28. H. 8. Be. Acti. sur le case. 3. 30. H. 8. Br. Acti. sur le case. 104. : so an action vpon the case lieth for calling the pl false iustice of peace 
4. E. 6. Br. Acti. sur le case. 112. . But to publish one for his villain, who in truth is his villain is no slander nor actionable 
2. E. 4. 5. : nor to publish one to be a bastard, who is in dead a bastard, if the defendant do make title to the bastards land, and did therefore term him bastard that the matter might bee produced into question and trial 
25. Eliz. Banisters case. .  Nomomath. 
Enough of this, wee will pass now to other matters.   

The third Dialogue. Of debts.  NOmomath. 
I pray you let me know Codicgnostes all the ways& means whereby one man may become indebted to another, so that remedy may be had by process of law for the debt.  Codign. 
A debt may grow by writing or especialty: 
1 debt may grow by writing or especialty.  as when the debtor confesseth himself to bee obliged and bound to his creditor, and such bond or obligation may be by deed indented sub eadem forma verborum,& by mutual delivery it becometh the dead of them both 
l. servum filii.§ eum qui chirographum. ff. de leg. 1. . Such a kind of writing wee call instrumentum privatum, 
2 An obligation may be by dead indented at the civil law.  because it is done in the name and by the hand of a private man, not in the name of any king or prince: and this kind of instrument ought to haue the subscription of three witnesses 
C. de proba. l. : but there is a private instrument of more solemnity, which is called of us instrumentum garrantigiae, 
3 What instrumention garrantigiae is at the civil law.  an instrument of warranty, vpon which a man shall haue present execution: as if it do specify that one man is indebted to another, this being presently exhibited in place of iudgement, the judge ought presently to award execution 
ff. de re judi. : and such writings obligatory if they haue any razure in them in any material place are of no credit in law 
c. ex litter. in glow. 2. de fid. instrument. : and there bee in our law three sorts of bonds, 
4 Three sorts of bonds by the civil law.  Naturalis, civilis, Praetoria. Naturalis is, when as by mutual contract one of the parties becometh mutually bound to the other. civilis, is that which is made in form of law, whereof we haue above spoken, wherein one of the parties confesseth and acknowledgeth himself to bee indebted to the other in a certain sum of money, and bindeth himself for the payment of the said sum. Praetoria, which is devised and conceived of the praetor, and judge, in precise terms specifijng the debt 
Insti. de obli. in prin. . Likewise debt may accrue unto one by way of contract, 
5 debt may grow by way of contract.  which is nothing else but the consent of 2. persons for a thing to be done or given by the one to the other, and it is on both sides obligatorious 
de pac. l. 1.§. 1. : for if two do consent in this true proposition: Titius est homo, or in this false assertion, Titius est Asinus, yet this is no contract, because non vtrobique obligat 
Gazalup. verb. pactum. : for if the words or act be obligatory, then the contract is obligatory, as contrariwise, if the words or act tend to acquittance, then the contract is nothing else but an acquittal, as if the creditor do redeliver the writing obligatory unto his debtor, this is an acquittance in lawe: for otherwise the redeliuerie should work nothing 
ff. de pac. l. labeo. : but if the creditor should redeliver a pledge unto the debtor, this will not amount to any acquittal or release of the debt, because the redeliuerie in that case may haue an other effect, namely the use of the pledge for a certain time 
l. sequent. ff. co. ti. : And if the instrument or especialty of the debt be come to the hands of the debtor, the law will intend prima fancy that it was redelivered by the creditor in lieu of an acquittance 
l. si chirograph. ff. de big. : but this must be limited with this restraint, if the debtor be a mere stranger in facto unto the creditor, but if he be his seruant or one of his family, conversing in house with him, then the intendment will bee otherwise: for then the law will presume that he might easily come by the bond without the privity of the creditor 
l. unica.§. ille. C. de lati. li. col. .  Canonol. 
I haue not at any time observed any thing in our lawe which maketh head against these determinations of lawe by you mentioned. 
6 The canon law agreeth with the civil in matters of bonds or debts.   Anglonomoph. 
Our law with some of these assertions fully agreeth, and from some flatly disagreeth, as I mean to manifest by examining in order the particulars of Codicgnostes his speech. 
7 debt may grow by contract by the common law.  debts with us may grow many ways, and every way an action of debt will lie: for it may grow by contract as Codicgnost. hath auowched. For if the husband sell trees growing vpon the land of his wife, and the wife death before they be cut down, yet the husband may maintain an action of debt: so it is of a vendition by the tenant in tail: so where a man hath a horse by wrong and selleth him to another for a certain sum of money, and before the delivery of the horse, he dieth, or the owner taketh him away, yet an action of debt lieth vpon the vendition 
18. E. 4. 6. . So if a man sell ten acres of land to another for ten pound, and after he will make no assurance of the land, yet he may maintain an action of debt for the money, and the other is put to his action vpon the case, but if it bee agreed, that the assurance shall be made before a certain day, and the ten pound to be payed vpon the perfecting of the assurance, then the lawe is otherwise. For if he make not the assurance before the day, but after he shall not haue an action of debt for the ten pound 
22. H. 6. 50. {per} Newt. . But if a tailor do make a garment for me, if we bee not agreed before what I shall pay for the making, he can not haue an action of debt, otherwise it is for victuailes and for wine 
12. E. 4. 8. . Likewise an action of debt lieth vpon a loan of money, 
8 An action of debt lieth at the common law for a loan of money. 9 An action of debt lieth at the common law for a mere duty.  made by the creditor to the debtor 
Fitzh. N.B. 119. G. : or it lieth for a mere duty, as when an attorney bringeth an action of debt for money expended in the suite of his client 
Fitzh. N.B. 121. L. 10. H. 4. debt 158. 3. E. 4. 29. : or vpon an obligation, as when the especialty is noverint vniuersi me teneri &c. And after the dead saith, ad fideliter computandum de proficuis, in this case the obligee may use an action of debt, or an action of account at his pleasure 
41. E. 3. 10. 42. E. 3. 9. 28. E. 3. 98. . Vpon which case Baker 28. H. 8. in Cores case thus distinguisheth, that if the delivery of the money were to this intent, that an increase or profit might rise of it, and not that money might be repaid, there no action of debt will lye, but a writ of account onely 
28. H. 8. 20. Dy. Cores. C. . And if a man do make a contract to pay certain money for a thing bought by him, 
10 An obligation made after a contract dissolveth the contract by the common law.  if he make an obligation for the money, the contract is discharged, and he shall not haue an action of debt vpon the contract 
9. E. 4. 25. 28. H. 6. 4. 21. H. 7. 5. 1. H. 6. 8. per Bab. 20. H. 6. 23 35. E. 3. debt. 83. . But if a man make a talie, and writeth words obligatory vpon the talie, and ensealeth it and delivereth it as his deed, yet this shall not bind him, but he may plead nihil debet against it, or may wage his law, for an obligation ought to be writ in parchment or paper, and not vpon a piece of wood 
25. E. 3. 40. 44, E. 3. 21. 2. R. 2. debt. 4. 12. H. 4. 13. . But the queen may maintain an action of debt against her farmer upon such a talie 
5. E. 4. 10. . And a man shall not be fined for denying a talye ensealed 
4. E. 2. en le title de fine. . And whereas you say that a man may bee bound by deed indented, that is likewise so with us: For if one aclowledge himself by indenture to bee indebted to another man in an hundred pound: 
11. A man may be bound by dead indented by the common law.  for which he delivereth him certain velvet, that the other may sell it after the best manner that he can, and to reteigne it for payment, and if any thing remain of the debt, that he will pay it, the other may sell the velvet for twelve pence, and use an action of debt for the remnant 
18. E. 4. 5. . and 11. H. 6. an action of debt was brought for an hundred marks devised by the last will and testament of A. being in the hands of the defendant, the def. by Indenture acknowledged that the said sum of money remained in his hands,& the devisee made his executors& died,& the abovesaid action of debt was brought by the executors,& it was allowed: the law is likewise so of an account 
11. H. 6. 46. . And if the words of an indenture be so: Ita conuentum est inter nos quòd A. soluat B. 20. li. ad festum Pasch. B. may haue an action of debt hereupon 
30. H. 6. per Yeluert. Stath. Tit. covenant. . So when a man maketh such a bill, namely this bill witnesseth, that I A. haue borrowed so much money of C. without saying more, this shall charge the executor as well as an obligation, and the testator could not haue waged his law against this bill: for these words recepisse, or debere, or teneri ad soluendum 20. li. do make a good obligation and shall bind the executor: for every word which proveth a man to bee debtor, or to haue a strangers money in his hands, though it be by bill, yet it shall charge the executor 
28. H. 8. 20. Cores c. per Fitzia. et montague. . As for your instrumentum garrantigiae, 
12 A statute bond is resembled to an instrument of warranty at civil law.  an instrument of warranty as you haue termed it, it is fully and proportionably resembled by a recognisance vpon a statute merchant or staple: for thereupon the party to whom the reconisance is made vpon the certifying of the same in Court shall haue present execution. For if a stranger to the reconisance of a statute come into the chancery and show the statute, and pray execution, he shall haue it: and if a statute merchant be acknowledged to two,& one of them cometh into the court with the statute he shal haue execution in both their names 
11. E. 4. 9. : And 17. E. 3. two sued a Cerciorari of a statute merchant, and after the Cerciorari returned the parties came not, but others, as executors proffered themselves, and shewed forth the testament and prayed execution, and had it 
17. E. 3. 31. ; But the opinion of Hill is to the contrary 18. E. 3. for a Ceciorari was sued vpon a statute merchant, and before execution the plaintiff died: wherefore green prayed execution for executors; But Hill said, that he should haue sued a Scire facias for the the executors, for it may be that the testator hath released: Wherefore you must sue a Scire facias out of the certificat 
18. E. 3. 10. . And vpon a statute staple the party shall haue execution of the body, lands and goods by one writ: And vpon a statute merchant, first a Capias till a quarter of a year be past, and vpon a return of Non est inventus, the party shall haue a writ to haue execution of his lands and goods 
15. H. 7. 14. Fitzh. Nat. bre. 131. D. . And a man may sue an action of debt vpon a statute staple, vpon a statute merchant, and vpon any other recognisance 
Fitzh. Nat. bre. 122. D. et fol. 17. . And whereas you haue said, 
13. A deed razed is not good at the common Law.  that a deed razed is not good in your Law, no more it is in ours, if it be razed or interlined, and in such case the obligour may conclude his plea, if he be impleaded in an action of debt, with a Non est factum 
1. H. 7. 14. doves C. per Keble. . And whereas you haue affirmed that there be three sorts of bonds in your Law, Naturalis, 
14. The common Law agreeth in substance with the civil Law in the three sorts of bonds.  civilis, and Praetoria: For the first two I haue shewed that our Law agreeth with yours: and as to the last it agreeth in the substance of the thing, though not in the sound of the name: For an action of debt may by our Law be brought vpon a recovery or iudgement containing the debt. For if a man recover damages in a writ of Wast, he may sue a writ of debt vpon this recovery, if he will 
Fitzh. Nat. be. 122. C. 20. H. 7. 3. . And so for damages recovered in a Redissesin, a writ of Aiel, cozenage, and a writ of Entre sur disseisin 
43. E. 3. 2. . But in that you said that the redeliuerie of a writing obligatory unto the obligee is in steede of an acquittance, 
15. The common Law dissenteth from the civil, in not making the redeliuerie of, a bond an acquittance.  this is not so in our Law. For though it be notably well objected by Fineux 1. H. 7. that there be as many ways for him to whom a deed is made to dissolve the deed, as for him who maketh a deed, to make it a deed: as where as it is ensealed, he may break the seal: and whereas it is delivered as the bond of the party, he may redeliver it in steede of an acquittance 
1. H. 7. Dones C. per Fin. : Yet it is better answered by Mast. Keble, that a redeliuerie may be either of a deed executory, or a deed executed: The redeliuerie of a deed executory hath some operation in Law 
ibi. per Keble. ,( as if a man deliver a writing obligatory as a scroll to I. S. to deliver as his deed to I. N. vpon a certain condition performed: if I.S. deliver the scroll back to the bailor, before the delivery of it to I. N. and before the condition performed, the bailor shall not any way be charged by virtue of this bond: But if it had been delivered at the first as his deed to I.N. vpon a condition performed 
Perkins Tit. Faits. :) Now the redeliuerie of it nequè ligat, nequè soluit, worketh nothing: because a deed can haue but one delivery, and if the first delivery be good, the second is void, if the first be not good, the second may be good 
1. H. 6. 4. . And so it is of a release executed: for if a man be disseised, and after release to the disseisor, and after the disseisor redeliuereth the deed of release to the disseisee, and saith that he will not haue advantage of it, yet this is to no purpose: for by the release executed no right may bee demanded by him to whom the deed is redelivered: but a right may be defended by him who is in possession, to whom the first delivery was 
1. H. 7. Dones c. per Vauisor& Keble. .( But if the disseisee re-enter vpon the disseisor, and the disseisor bringeth an assize, and hath not the dead of release ready to entitle himself to the land, the other may still hold possession of the land: but then the redeliuerie of the deed of release doth him no good directly, but only per accidence, because the want of it doth hurt to the disseisor.)  Nomomath. 
Now I pray you resolve vpon this, whether shall the Executor or Administrator be charged in all respects with the debts and Legacies of the testator, or how far forth they shall be charged: For I account a legacy to be a kind of debt.  Codicgn. 

1. By the civil Law the Executor succeedeth in vniuersum ius defuncti.  The making of an Executor, which of us is termed haeredis institutio, is to appoint one to be an universal successor in the right of all his goods after his death by his Testament or last will 
C. de haere. l. 1. , which is not of force till the death of the testator, but until that time it is kept clausum& signatum, and as Isiodore saith, rather according to the truth of the thing, then according to the true derivation of the word( as many times he doth) it is therefore called Testamentum, quia non valet nisi post testatoris monumentum, until the testator be laid in his grave 
Isiodor. li. 5. . And such Testaments must be insinuated to the official or commissary of the Bishop of the Dioces within four months after the death of the testator: 
2. Insinuation of a will necessary by the civil Law.  which insinuation is appointed by Law, Ad euitandum falsitatem, et sciendum veritatem Testamenti 
L. iubemus. C. de test. l. fi. C. de fidei. come. . But de jure Praetorio though a Testament be not made, yet some person may be appointed by the Praetor to administer the goods 
justi. de bo. poss.§. 1. et ff. eo. Tit. . And as well the administrator, 
3. By the civil Law the executor or administrator ought to make an inventory of the goods of the party deceased.  as the executor ought to make an inventory or sufficient Catalogue of all the goods of the party in whose right they succeed, which shall come to their hands. And it is a good and safe way for them so to do: for if they do so they shall not be charged further with any debts then the goods of the testator, or him that died intestate will extend. And such an inventory by our Law cannot be disproved, unless the number of the witnesses that disprove the inventory be twice as many in number as they which do prove it, which are commonly called Prizors 
cum jo. de fi. instru. . And the inventory ought to be begun by the Executor within 30. daies after the death of the testator, or at least within 30. daies after that he hath notice that he is made Executor: and it ought to be finished or consummated within thirty daies after, or at least within a year after, if the things be far distant, and dispersed in remote places, and then he shall be charged no further, then the goods will stretch: otherwise he shall be charged in solidum for the whole debt 
Gazal. in verb. Inuentar. .  Canonolog. 
These things which you haue proposed are not rejected of us, but are of validity in our Law.  Nomomath. 
I pray you Anglonomoph. ripp up the particulars of Codicgnostes his late discourse as distinctly as you can: for these things uttered by him are of great importance and use at this day: wherefore I would haue you studiouslie and with care to discuss these things.  Anglonomoph. 

4. The power of the Executor dependeth wholly vpon the will of the Testator by the common Law.  In the substance of these matters which he hath mentioned, I do not see at the first glimpse any discordance in our Law, but in the circumstance there will be some dissonancie, and variance. First to speak of the power of an Executor by our Law, it dependeth wholly vpon the will and designment of the Testator: For if a man make three his executors, and all refuse the administration but one, yet the others shall be executors by virtue of the will, and may administer when they please, and an action ought to be brought in all their names, otherwise the writ shall abate. And if a man haue goods in diverse provinces, he may make his executors of his goods in one of the provinces, and die intestate as to the other goods: And if the ordinary do commit the administration of the goods which are in the other province unto him, now is he both executor and administrator 
35. H. 6. 36. . And 4. H. 6. in an action of debt brought by the Executors vpon an Obligation, the defendant demanded oier of the Testament, and he had it, and the plaintiff shewed forth a Testament nuncupatiue, being thus in effect: Memorandum quòd A. constituit B. et C. executores suos, and this was under the seal of the ordinary: and the opinion of the Court was, that this was sufficient matter to maintain the action 
4. H. 6. 1 : and if there be not special caution to the contrary. By our Law likewise the executor doth universally succeed in the right of the goods of the dead, and he may enter into the lands of the testator to take the goods 
P. 9. H. 6. Stath. Tit. execute. ou Entr. . But if a man devise goods to one, and die, the devisee cannot take the goods without the delivery of the executor 
37. H. 6. 30. 11. H. 4. execute. 58. per Thirn. . And the executors do so fully, and viuelie represent the person of their Testator, that if an action of debt be brought against two executors, and the one of them pleadeth misnosmer, and the other pleadeth that he is administrator, and not executor: the opinion of the Court was that they should not haue both pleas, because they did represent their testator, who could haue but one onely plea 
37. H. 6. 30. 7. H. 4. 13. . But it seemeth by the book of 8. Ed. 4. that they shall haue several pleas, and the most peremptory shall be tried 
8. E. 4. 24. execute. 31. . And an executor or administrator may haue a writ of Error vpon a iudgement given against their Testator concerning debt or damages 
Fitzh. Nat. bre. 21. M. . And that a testament and a devise are of no force till the death of the deuisor, 
5. According to the common Law a devise is of no force until the death of the deuisor.  may appear by diuers good authorities in our Law 
Littlet. lib. 2. c. 10. sect. 8. 27. Ass. pla. 60. . And whereas Codicgn. hath said, that by their Law there must be an insinuation of the will to the Bishops official, 
6. The common Law agreeth with the civil in the insinuation of wills.  doubtless it is so in our Law, for there must be such an insinuation and probate of the will, before the executors may bring any action of debt 
7. H. 4. 18. 10. Eliz. come. Brets c. et en Greyst. case. . And the ordinary may sequester the goods of the dead, until the executors haue proved the Testament: And the metropolitan may do the same, if the goods be in diverse dioceses 
9. E. 4. 33. . But our Law differeth from the civil Law in this, that the administration of the goods of him that death intestate is not committed by the Praetor, but by the ordinary: For if a man be indebted, and die intestate; or if the Executors of one that hath made a Will refuse to be executors, whereby the goods do come to the hands of the ordinary, the creditors may haue a writ of debt against the ordinary by the statute of Westminster 2. cap. 19 
Fitzh. Nat. bre. 120. D. . and in this case he must be sued by the name of ordinary 
9. E. 4 34. . But after administration committed the ordinary shall not be sued 
8. Elizab. 247. Dy. . And if seed vacant, the dean and chapter be guardian of the spiritualties, if a man do then die intestate, and the dean only administereth the goods, it is sufficient for the Creditors to use an action against the dean onely: Otherwise it is if the dean and chapter as ordinary should use an action 
17. E. 2. Br̄e 822. . And so if the ordinary make his executors and die, 
7. That an action of debt will lye against the ordinary.  the Creditors may haue an action of debt against the executors of the ordinary 
Fitzh. N.B. 120. D. Vieux Nat. br. 61. : though 11. E. 3. in the title of Executors be directly to the contrary 
11. E. 3. Executors 77 . But a man shall not haue an action of debt to charge the ordinary( as ordinary) unless he do administer in his own dioces 
12. R. 2. Administr 21. . But the ordinary can not haue an action of debt against such which were indebted to the party intestate, because that action is given to the administrator, and the ordinary may commit the administration of the goods when it pleaseth him. But before the statute of king Edw. the 3. and' 31. ca. 11. the administrators could not haue an action of debt: therefore it seemeth before that time the ordinary might haue used an action of debt, otherwise remedy should haue failed 
Fitzh. N.B. ibid. . but the ordinary may& might at all times haue had an action of trespass for the goods of the dead taken out of his own possession 
18. H. 6. 23. 7. H. 4. 18. 11. H. 7. 12. : but not for goods taken out of the possession of the party intestate 
17. E. 2. brief 822. . But if the ordinary without formal letters of administration granted, do give one licence and authority to sell the goods of the party deceased intestate quae peritura essent, and he doth it accordingly, he which doth so administer shalbe punished as an executor of his own wrong 
9. Elizab. 256. Dy. . neither can he commit administration by word of mouth, otherwise it is if it bee entred into his register though letters of administration bee not formally drawn 
21. H. 6. 23. . And it may come in issue whether he that granteth administration were ordinary in the place where the administration was committed, as if the village do extend into two dioceses 
35. H. 6. 46. . And it may come in issue whether administration were committed by the ordinary. And whereas Codicgnost. hath also affirmed, that if the executor or administrator do make an inventory, 
8 The Canon law agreeth with the civil in administering the goods comprised in the inventory according to the testament.  and dispose the goods comprised in the same according to the testament of the party and appointment of lawe they shall not bee further charged, our lawe in this consorteth with the civil law: for it is a good plea for the executor to say that he had fully administered before he had notice of the writ of the plaintiff 
7. H. 4. 10. ploughed. come. 277. : for though he do pay debts vpon contracts, the writ depending against him upon a bonde, whereas he had no notice of the suite, he shall not bee in such case charged 
2. H. 4. 21. . And 3. H. 6. in an action of debt vpon an obligation of twenty pound brought against executors, they pleaded riens enter maines, that they had nothing in their hands, and it was found by verdict that they had ten pound in their hands: wherefore the plaintiff had iudgement to recover so much as was found of the goods of the deade, and the damages of the goods of the executors for their false plea 
3. H. 6. 4. . But in Dauises Case in the Commentaries it was otherwise ruled that nothing should bee put in execution vpon such a plea but onely the goods of the dead 
Dauis. C. come. 440. . But in a Fieri facias vpon a recovery against executors the sheriff returned a deuastauerunt, wherefore the Court did grant a writ to haue execution of the goods of the dead, and if there were no such goods, then of the goods of the executors 
11. H. 4. 70. . And 4. E. 3. in an action of debt brought against the executors, it was found that they had fully administered, and the opinion was, that the jurors should set down incertain how much they had administered, because they shall not bee charged but onely according to that which is found by inquest 
40. E. 3. Statha. Tit. executors. . But it was said 34. H. 6. that when the executors do pled( fully administered, but onely for so much)& their plea is found, the plaintiff shall haue iudgement to recover all his debt, but he shall not haue execution but onely of the goods in their hands 
34. H. 6. stath. Tit. execute. . But it is good to bee considered what may properly bee said assets in the hands of the executors: 
9 What may properly be said to be assets in the hands of the executors.  if the executors do merchaundize with the goods of the testator, the increasall of them shall bee assets in their hands, and shall charge them, and they cannot pled that they haue fully administered when they haue such assets 
11. H. 6. 35. per ball. . And if executors do sell the goods of the testator, and do buy them again, they remain in their hands as assets, because they were the same goods which were the testators 
18. H. 6. 4. .( But then it seemeth that the money which they had for the sale of the goods was wasted by them, and not converted to the use of the testator: for otherwise there is no reason, but that they should haue a property in them to their own use) for if the executors pay the debts of the testator of their own goods, they may retain the goods of the testator to the value in their hands, to their own use 
6. H. 8. 2. Dy. . But it was held by M. Fitzherbert 27. H. 6. that where a man is indebted 40. pound to one, and 30. li. to another,& death; and hath but 40. li. and his executors or administrators agree with the creditor of 40. li. for 10. li. and haue an acquittance of the 40. li. yet the thirty pounds which remaineth in their hands shall bee assets 
27. H. 8. 6. per Fitzh. . And so a gauge being ransomed shall bee assets in their hands, but according to M. Frowikes opinion it shall not bee assets if it were ransomed with their own money 
20. H. 7. 2. : But as M. brook noteth well abridging the case abovesaid of 20. H. 7. the money which cometh in lieu of a pledge, being gauged to their testator shall bee assets in their hands. So it hath been adiudged, that if a man make a feoffment vpon condition that the feoffee shall sell the land, and distribute the money to the use of the testator, whereupon he selleth the land, and the feoffor maketh him his executor, the money taken for the land sold shall be adiudged assets in his hands 
2. H. 4. 21. Executors. 51. 3. H. 6. 3. . So if the executors plead( fully administered) and it is found for them, and after certain goods of the testator come to their hands, wherefore he which brought the first action of debt bringeth the same against them again, this action is well maintenable 
7. E. 4. 8. per Littlet.& Danby. .  Nomomath. 
You haue satisfied me for this point Anglonomoph. Now I pray you Codicgnost. strain your endeavour a little to resolve me vpon point of execution to be sued vpon these debts. I haue read that in ancient time it was a law amongst the Romans, that if a man greatly indebted were not able to discharge the debt, 
1 The rigorous law of the romans in their execution for debt.  his body was mangled and cut in pieces, and the greatest portion of it given to his greatest creditor, a lesser to him to whom he did owe less, and so pro rata 
Paul. Manut. lib. de legi. Roma. : which lawe beside the ferventnes of it in such a common weal was very inhuman: for the creditors might, if they would in their fury, by this law cast the members and partes of the bodies of their debtors to dogges, and other brutish beasts, so that that the romans had not so much care of their Senators, gentlemen and citizens, as the friends of Diogenes had of him. For when the cynic lay vpon his deathbed, his friends which were then about him, asked him in courteous manner, where he would be butted, he thinking perhaps that a man was nothing but a mind, answered them that he would bee butted in the dunghill, and they replied that that would be very inconvenient: for the dogges would then rak him up and devour him: Then( said he) lay some staues by me to beate away the dogges; but they  told him that he could haue no sense in his body after his death: then( quoth he) what need I fear the dogges. This was but the glance of Diogenes, who made more account of his scoff then his state. But others more civil do think it a great loss, shane, and indignity that a mans body should not be butted, 
2 The execution of the romans greatly to bee reproved, because it did deprive men of burial.  wherefore Lucan sharply inueyeth against Caesar: Tu, cvi daunt paenas inhumato funere gentes 
Luca. lib. 7. : And it is the iudgement of all antiquity that without very heinous fault the partes of a mans body should not bee debarred from sepulture. Romulus though he had caused to be slain his brother Rhemus, and after his death did continue his fury as his speech importeth: Sicque meos muros transeat hostis ait. Yet he gave him sepulture, and attended vpon the hearse himself: for as the Poet saith 
ovi. Fasto. 4 : 
Dat tamen exequias, nec iam suspendere fletum  
Sustinet,& pietas dissimulata patet:  
Osculaque applicuit posito suprema feretro,  
Atque ait: inuito frater adempte vale.  And therefore the Ambassador of Darius doth exceedingly praise the great courtesy of Alexander mourning for the death, and having special regard of the sumptuous sepulture of the wife of Darius his professed enemy: Vultum tuum video qualis Darij fuit cum dimitteremur ab eo,& ille tamen vxorem, tu hostem luges. Iam in acie stars, nisi cura te sepulturae eius moraretur 
Curti. li. 4. . And Salomon saith divinely: If a man beget an hundred children, and live many yeares, and the daies of his yeares bee multiplied, and his soul bee not satisfied with good things, and he bee not butted, I say that an untimely fruit is better then he 
Ecclesiast. c. 6. v. 3. . Then surely( that I may recourse unto that from which I digressed) for the Romans to add shane to affliction, and when the hard debtor is not able to maintain himself with meate and apparel in any reasonable sort, after straite imprisonment and extreme want, to cut his body in pieces, and to distribute it in recompense of of vile money, is a thing very immane, and in my opinion greatly obscuring the bright and glorious dignity of the ancient roman common weal. Miserable doubtless is the state of them which haue nothing but domi inopiam, foris aes alienum, malam rem, spem multo asperiorem,& nihil reliquum praeter miseram animam 
Salusti. in catiline. . The Lord in his year of jubilee signifieth his pity toward decayed persons. Septimo anno facies remissionem, quae hoc ordine celebrabitur. cvi debetur aliquid, ab amico vel proximo, ac fratre suo repetere non poterit, quòd annus remissionis est domini 
Deuteron. c. 15. . And to prevent the cautelous sophistry of miserable worldlings he giveth this caveat. cave ne fort subrepat tibi impia cogitatio,& dicas in cord tuo: appropinquat septimus annus remissionis,& auertas oculos tuos a paupere fratre tuo nolens ei quod postulat mutuum comodare, ne clamet contra te ad dominum &c. Augustus Caesar that wise Emperour was of so merciful disposition that for establishment of peace and concord amongst the romans, he relieved the common stock, which was greatly impaired by civil warres with his own private wealth, and them that were indebted to the common treasury, the bills of debt being burnt with his own hands he did free from the danger of the roll 
Dio. Nicae. in vit. August. Carol. Sigo. in fi. lib. fast.& triumph. Roma. . Mercy doubtless, and pity is to be extended to such as haue nothing to help themselves withall,& therefore do not pay debts, because they can not: Non mancha est voluntas, said potestas mutila. To such I say mercy ought to bee exhibited. The richest man in the world, bee he never so good, is a greater debtor to God, then any man is to him: yet God doth forgive, and will not man forgive? Quis persequeretur canem mortuum. What horseleech would suck for blood out of a bloodless member? Bitter was that saying of tyrannical Tyberius to one that requested death, rather then long imprisonment: Nondum tecum redij in gratiam? Blessed are the merciful for they shall obtain mercy 
Mat. 5. v. 7. . I speak not this as if favour should bee shewed to covetous churls, which had rather lose their bowels thē their bags, and devise fraudulent shifts and knotty conveyances to bereave& defraud the creditor of his due debt: and whereas they may make payment in ten dayes, do defer it ten yeares. It were a blessed thing, if the bodies of such miserable Midasses might be changed to gold, whilst they were in prison( so their souls might be saved) that by such means at the least their creditors might be satisfied. But let every Creditor use conscionable discretion, and distinguish betwixt them and these that be otherwise minded.  Diuexet coruos, parcat censura columbis. 
Let them use mercy to such as be humbly minded, and anguished in hart, because they are not able to discharge their debts: Let them remember that charity seeketh not her own: that she freeth the bondman: cheereth the weak: fatneth the poor: doth good against evil. Some think it great charity to spare a mans goods, when he hath but a little left, and to imprison his person: if that be charity.  
O mites Diomedis equi: Busiridis arae  
Clementes tu Cinna pus: tu Spartace lenis 
Claudi. lib. 1. in Ruffi. .  
Let the Creditor think that he may fall into the same calamity and extremity himself which the debtor suffereth: And( that I may use the words of the noble-witted Curtius,) Suam quisque fortunam in consilio habeat, cum de aliena deliberat. The Troians were once a flourishing people: Ferus omnia jupiter Argos transtulit 
Virg. in Aenei. : Troy a goodly city: I am sedges est, ubi Troia fuit 
ovid. in epistol. . Hecuba in her youth a gallant princess, in her age a captive, deploring her estate with Me videat et te Troia 
Senec. in Troia. . And Seneca the artificer of sorrow saith well: 
Quem dies videt veniens superbum  
Hunc dies vidit fugiens iacentem.  Most divine is the saying of that deep divine: I haue seen seruants on horses, and Princes walking as seruants on the ground 
Ecclesiast. c. 10. vers. 7. .  Codicgn. 
You haue insisted a long time vpon a Law antiquated, 
3. That the rigorous Law of execution for debt was afterward abrogated by the romans.  and made a large comment vpon a supposed text: for the Law, which ministereth occasion of your copious discourse, though it were allowed and used by the romans for the terrifying of unconscionable men, which made no scruple to overwhelm themselves with debt, and never to discharge it, or compound for it, or to show any thankfulness for it: yet when the horror of the punishment seemed grievous and too shameful unto them, that Law for the bitterness of it was out of their authentic diskalendred: and many yeares are past sithence it was repealed and abrogated 
Hotom. lib. illustr. quaest. . But now according to our Law execution lieth vpon the goods of the party which we term bona: 
4. By the civil Law execution for debt lieth vpon the goods of the party,& how far forth the word( goods) extendeth.  but the signification thereof extendeth further then the name of goods at the common Law: for it signifieth res nostras quae sunt in dominio nostro, vel quasi: and it signifieth as well inheritance as goods.  Canonolog. 
In this we dissent not from you.  Nomomath. 
Let me know Anglonomoph. what maner of execution ye use for debt at the common Law.  Anglonomoph. 

5. A fourfold execution for debt by the common Law.  The execution is fourfold, either of goods onely by Fieri facias, or of the moiety of lands by Elegit: or vpon all the lands by an Extendi facias, vpon the reconusance of a statute, or of the body by Capias ad satisfaciendum: every of which by your patience I will explain by cases and examples, or by showing their original. A Fieri facias issued out of the exchequer for the king against a person for money due to the king out of an Abbey, 
6. The execution of goods by F●e●i facias is opened.  to which the Church of the person was charged in xx. marks, and for two marks behind a Fieri facias issued to the sheriff in these words: Fieri fac. de bonis et catallis spiritualibus, et temporalibus prouenientibus de Rectoria de R. and the sheriff by his bailie took two books in the Church, and sold them for the kings debt 
8. H. 5. 4. . And whereas A. did recover damages in a special assize before special Iustices, and brought an action of debt for the damages: it was resolved that the defendant was debtor of record, and therefore ought to be discharged by matter of record, and for that cause the Fieri facias is: ita quod habeas denarios hic, to the intent that the payment of the money to the plaintiff may be of record, and the defendant discharged by record 
11. H. 4. 58. . Execution by Elegit is warranted by the Statute of Westminster 2. cap. 18. which saith: Si quis recuperet debitum aut damna, sit in electione querentis, an habere velit Fieri facias de terris& catallis( it should seem to be meant de bonis& catallis) vel quòd Vicecomes liberet,( it seemeth to be better, et quòd Vicecomes liberet ei omnia catalla debitoris, exceptis bobus et affris carucae suae& medietatem, it seemeth more agreeable to the purpose, vel medietatem terrae suae, quousquè debitum fuerit leuatum per rationabile pretium et extentam. 
8. Execution vpon statute merchant is opened. ) The execution vpon Statute merchant may appear by this case. A man had execution out of statute merchant, and the sheriff returned an Extent of the lands of the reconusor in this maner, sciz. that he had sent to the baylie of the franchise &c. who had return of writs to extend the lands, which were within the franchise, and so he did, and that which was within the bailiwick of the sheriff namely in guildable, himself caused to be extended by parcels, and at the end he put the sum of the value, and after the sum he put the charges, as rents, and other charges which were due out of the said lands, and amongst other charges he returned that the land was charged to the reconusee with xx. li. yearly for ever: And the Iustices cast all the charges of the lands, and the value, and they did perceive that the charges passed the value by xl. s'. and after it was shewed that the sheriff had sent to an other bailiff of an other franchise in which the party had lands, and of these lands he made the third extent, so that by that extent the value passed the charges by ten shillings, wherefore execution was awarded 
29. E. 3. 1. . And 9. E. 3. one sued a writ to take the body of him, who had made a statute merchant to him, and the sheriff returned that he was dead, wherefore he prayed a writ to the sheriff to deliver unto him all the lands which he had the day of the reconusance, or at any time after, 
8. Execution by Capias ad satisfaciendum is shewed.  and he had it 
9. E. 3. 24. . Execution by Capias and imprisonment is after this manner. damages were recovered against I. in a writ of trespass in the kings bench, in the time of king Henry the fourth, and after in the time of king Henry the fifth he was condemned in London at the svit of an other, and put in Newgate, and he at whose svit he was condemned in the kings bench had a Capias ad satisfaciendum to the Shirifes of L. which did sand the body, and did certify that he was condemned at many mens suits in London, and now he that sued the Capias came into the Court and did aclowledge agreement to be made, and the defendant was ready to make a fine to the king, and prayed to be delivered: But because he was condemned in the time of an other king, and the Iustices which be now haue not knowledge of the persons, which were parties to the pleas in the time of an other king as the Law doth intend, and likewise, because if he be acquitted here, he must be sent back into London, because he is condemned there: and thirdly, because by covin betwixt him which acknowledgeth agreement, and the defendant, he may defraud him at whose svit he is condemned of his execution: for if he be delivered, the other is without remedy, therefore a Scire facias was awarded 
8. H. 5. 7. . The like Law is in an execution vpon an Action of debt, and in an acquittal, the fine to the king being excepted.  Nomomath. 
Well, I will trouble you no further about questions of debt. Now let us pass according to the platform of the conference to examine doubts touching accounts.   

The fourth Dialogue. Of accounts.  NOmomath. 
Suppose Codicgnostes that I deliver unto you my horse or hawk, to sell him for five pounds, and to deliver me either the five pounds, or redeliver the thing again: Shall you not be accountable to me in this regard?  Codicgn. 

1. In what case a man is accountable at the civil Law per actionem aestimatoriam.  Yes truly, and that by an action which we call Actionem aestimatoriam, because it is conceived upon the special and prescript words of the valuation of the thing 
ff. de aestima. ac in rubro. et l. 1. et Insti. de actio.§. actionum. .  Anglonomoph. 

2. The difference of a special bailie, and general bailie at the common Law.  So by our Law we haue a special bailie, and a general bailie: A special bailie is he which is bailie after a special maner, and to a special purpose. For if a man deliver an Obligation to an other to receive so much money as he can get of that which is contained in the bond, if he receive no money vpon the bond, a writ of account lieth not, but a writ of Detinue for the bond:( But it seemeth that if he receive a less sum, then a writ of account will lye:) But if he receive the very sum contained in the bond, then a writ of account will lye against him, as receiuor of his money. But if his bailie be also bailie of his mannour, and this Obligation be delivered unto him as bailie of the mannour, then an account will lye against him as bailie of the mannour habentem curam of this Obligation 
2. R. 2. account 46. : for a bailie of a mannour may well be termed a general bailie. And Brian 2. R. 3. putteth an express difference betwixt a general, and a special bailie: A man saith he may be bailie of a mannour, or of an house, if he be bailie of a manor, 
3. What things belong to the charge of the bailie of a manor.  he hath charge of all the oxen, horses, ploughs, belonging to the manor, and of all the profits arising, and growing out of the manor, and he shall be accountable for them. But if he be bailie of an house he shall not be accountable, but only for the house 
2. R. 3. 14. per Br. . But this is the difference betwixt a bailie, and a receiuor, according to the bringing of a writ of account. A writ of account will not lye against one as bailie for a certain and a peculiar thing: But whereas A. giveth twenty pound to B. to merchandise for him, and to his use, for the profit hereof, because it is a thing uncertain, a writ of account will lye, to the end that by the writ of account the incertainty may be brought to certainty 
9. H. 5. 3. per hill. . But in your case proposed, the bailie is to bee intended a special bailie. But this general and currant rule we haue touching all bailiffs, as well general, as special: If the bailie be prejudicial to his his master, he is to make recompense to his master: 
4. That by the common Law if the bail be prejudicial to his Master, he is to make recompense.  As if my bailie sell a quarter of corn for forty pence, whereas he might haue sold it for vj. s'. viij. pence, he must answer for this 
6. R. 2. account 47. per Belkn. . So if he buy things for xx. pound, which are not worth x. li. he shall not be allowed this vpon his account, though he did as much as he could according to his knowledge 
41. E. 3. 3. per Finch. . But if a baylie do a thing which toucheth his bailiwick, and which duty bindeth him to do, as if he pay rents or other dueties which are due of the mannour, he shall be satisfied for this: otherwise it is if he do any thing which toucheth not his bailiwick, for then he ought to haue special warranty 
42. E. 3. 6. per Belkn. .  Canonol. 
Our law dissenteth not from these assertions.  Nomomath. 
Suppose I give money to Titius to buy for me and to my use the land of Sempronius lying in dale, whether is Titius accountable to me for this.  Codicgnost. 
There is no question but he is 
ff. acti. man. dat. direct. l. si vero.§. fi. . but if yourself or some other to your use do buy the land of Sempronius, 
1 By the civil law the bailie is discharged if the master intermeddle.  now is Titius discharged unless he more expediently, and with less cost might haue bought it of Sempronius 
ff. eod. Tit. l. si procurator.§. mandat. act. .  Anglonomoph. 
This is not repugnant to our law: and in all cases a writ of account lieth where a man is put in trust to procure the profit of another, 
2 That by the common law as well as by the civil he that is put in special trust to procure the profit of an other is accountable.  and is not his apprentice: for if the king grant to a village certain tolle of things which shall bee sold in the same village, and the townsmen of the village make collectors to receive the toll: if afterward the collectors will not make account hereof, they may haue a commission out of the chancery to inquire who hath received this tolle or money, and to hear their accounts and to determine the matter 
Fitzher. N. B. 119. f. 114. c. . And 8. E. 4. it was said by Nedham, that the Churchwardens of a certain parish might haue a writ of account against their predecessors, but the parishioners could not 
8. E. 4. 6. per Nedh. : And so the master of an hospital may haue a writ of account against him that was receyuor or bailie in the time of his predecessor 
Fitz. N.B. 117. F. . And 30. E. 3. a writ of account was made by a master of an hospital against one, as the bailie of his Church, and this form of writ was allowed, and the action was brought by him as person, he being not name person in the writ, and yet the writ was allowed because he demanded nothing which might continue to the Church for ever, as he must do in a juris vtrum 
30. E. 3. 1. 13. H. 4. account. 124. 29. E. 3. 60. . And 4. E. 3. a writ of account was brought for a receipt of certain money in the time of his predecessor 
4. E. 3. account. 97. : and 34. E. 3. in a writ of account against one as the bailie of his wood, the pl declared, how the def. was the bailie of his wood to cut it, and to sell it; and the declaration was allowed without saying that he did any way administer: for this must come in by way of answer, and so the writ may bee against the bailie of a mannor habentem administrationem bonorum:& Moubrays opinion was that the bailie of a wood ought to make account for the fruits of the trees, herons and hawks 
34. E. 3. account. 131. . But a writ of account cannot be brought against one as his bailie, unless he be the bailie of his house, land or mannor 
9. E. 3. account. 95. . And if one ought to be bailie by reason of his tenor though he do not occupy the office, yet he shall be charged in a writ of account 
18. H. 8. 2. . And if a receiuor or bailie do make a deputy, yet the writ of account ought to be brought against the bailie himself, or against the receiuor himself,& not against their deputies: for the deputies resceiue the money, and administer the goods to the use of the master 
Fitzh. N.B. 119. B. . but a writ of account will lye for the receiuor against his deputy, as for the viscount against his deputy 
11. R. 2. account. 48. . And a man may haue a writ of account against a woman as receptrix denariorum 
8. E. 2. brief. 847. Fitzh. N. B. 118. D. . And 4. E. 4. there is an excellent difference taken where a woman is bailie or receiuor to a man, and after she taketh a husband, a writ of account lieth against them both( as econuerso it lieth for thē both 
28. H. 6. 7. :) de tempore quo &c. dum ipsa sola fuit: but whereas a man& a woman be receiuors,& they after entermarie: in the writ they shal be both name receptores 
4. E. 4. 26. 19 H. 6. 5. : but a writ of account will not lye against an infant as bailie or receiuor to any man, because the law will not intend that any man will put confidence or trust in him who wanteth discretion,& experience. 
17. E. 2. account. 121. 16. E. 3. account. 57. 27. E. 3. 77. 19. H. 6. 5.   Canonol. 
There is nothing in our law which oppugneth any thing that you haue said.  Nomomath. 
If the master of the baylie happen to die, whether may his executors charge the bailie with an account.  Codicgnost. 
By our law they may 
ff. acti. mandat direc. l. si vero§. f. 1 .  Anglonomoph. 
That likewise is warranted by our law: 
1 account ought to be made to executors by the civil law.  for if any haue cause to haue an acti- of account against his bailie or receiuor, if he die, his executors may haue this action, yet the common law at the first was otherwise 
7. E. 3. 62 . But now it is altered by the statute of Westminst. 2. c. 23. and agreeth fully with your law in this: For 38. E. 3. one was bailie of a wood to two ioyntenants& a writ of account was maintained by the executors of him that survived 
38. E. 3. 8. : to which accordeth 19. E. 3. and that the heir shall not haue a writ of account against him that was receiuor to his father 
19. E. 3. account. 56. : And 3. 
2 The same is warranted by the common law. 3 That a writ of account by the common law will not lye against executors unless it be in some special cases.  Eliz. the administrator brought a writ of account 
3. Elizab. 202. Dy. . But a writ of account will not lye against the executors or administrators of a bailie or receiuor for the receipt and occupation of their testator 
Fitzh. N. B. 117. C. : unless it be in the kings case 
Littlet. Tit. socage. . But if the executors do once enter into an account, a writ of account will lye against them in the case of a common person 
12. E. 4. 10. . Or if the bailie or receiuor bee found to bee in arrerrages of account, and die, an action of debt lieth against his executors vpon an insimul comput auerunt 
2. H. 4. 13. . And it appeareth by that book that in the writ he must be name executor: and a bailie may haue a writ of debt against the executors of his master for a surplusage of account 
13. H. 6. executor. 21. .  Canonol. 
This I can not withstand by any reason in our law.  Nomomath. 
I pray you let me know the force and substance of the authority which the master may give to the bailie.  Codicgnost. 

1 What authority may be assigned to a bailiff by the civil law.  It is no more but when a man may do a thing by himself, he committeth it to another to be done of him 
Gazalu. verb. mandat. . And he that doth execute the authority ought not to exceed the limits of his authority 
justi. manda.§. si is qui. . But this difference we put betwixt an authority, 
2 The difference of an authority a charge, and command by the civil law.  a command, and a charge: The command is determined by the death of him that commandeth, the authority is not, neither is the charge, as by this verse though somewhat obscure is not obscurely signified 
In his de verbo sig. .  
Praeceptum non praecipitat mors praecipientis:  
Mandatum mandatore cadente cadit.  Canonol. 

3 The canon law is against the difference so likewise is the common law.  But some hold opinion, that all these three: authority, command,& charge do expire by the death of him that commandeth, chargeth, or giveth authority 
joan. 14. q. 1 quod praecipit. .  Anglonomoph. 
In dead that is more agreeable to our lawe especially in this matter of bailieship, as may appear by diverse authorities in our law 
2. Eliz. 177. Dy. 5. Eliz. 219 Dy. 2 E. 4. 4. 10. Eliz. 270. Dy. .  Nomomath. 
I pray you let me know the difference betwixt a bailie, a solicitor, an attorney, and deputy, that I may haue more distinct knowledge of that which I endeavour to know.  Codicgnost. 
A bailie is he to whom a special charge of procuring a mans profit, 
1 The difference betwixt a bailie, a solicitor, and attou●ney, and a deputy, is shewed out of the civil law.  and the valuable increase of his wealth is committed 
Gazalup. in ver. villici. : an attorney which wee term by the name of Procuator adiudicia is he which in place of iudgement doth for an other man by his warrant complain or defend 
ff. mandat. l. 1.§. 1. : and this may bee done either in the presence or absence of the master: but a solicitor which of us is termed Procurator ad negotia, is he that handleth the cause of his master being absent. And an attorney by our law must at the least bee of the age of XXV. yeares: but a solicitor may bee, though he be but seventeen yeares old 
c. fi. de procu. l. 6 . A deputy is he to whom a special authority is committed to deal in a certain business 
c. de officeius qui vic. gerit. . And there is this difference betwixt a bailie or a deputy, and an attorney or a solicitor: because in a bailie or deputy the business which is committed to them, which we call negotium extraiudicium beginneth at the ministerial party that is the bailie or deputy, and is transferred unto the Lord or master: for the effect of the business whether it be profit or charge belongeth to the Lord: but the business of the attorney or solicitor, which we call negotium in judicio is originally in the Lord or master,& after( as we say) transfunditur in procuratorem, it is convyed to the attorney or solicitor 
l. fi procurator meus ff. de neg. ge. .  Canonol. 

2 The difference holdeth not in the canon law.  We make no such difference in our law: for every one which doth administer an other mans business, we call by the name of procurator 
1. q. 3. saluat. .  Anglon. 
The common law doth in this more agree with that which Codicgn. hath said. 
3 The common law according to the aforesaid difference doth more agree with the civil then with the canon law.  I will speak of this difference as the cases in our law concerning it shall come to my memory. The name and office or duty of a solicitor stretcheth very far in our law: for it may extend to the prochein amy the next friend, by whom an infant or one within age shall sue an action: or to the warden of the infant by whom the infant shall be defendant in an action 
13. E. 3. Attorney. 76. 40. E. 3. 16. : And an infant was received to sue a writ of error by his warden 
27. Assi. pl. 53. Fitz. N.B. 27. H. . And an infant shall not remove hir warden, nor disavow his next friend, which sueth an action for him 
34. Assis. pl. 5. 27. Assis. pl. 53. . But by a writ out of the chancery the infant may remove his warden, or the Court by their discretion may remove him 
Fitzh. N.B. 27. M. 27. Assis. pl. 53. . But as to the making of an attorney we haue this rule in our lawe. Nemo potest facere Atturnatum nisi habeat proprietatem in re,& ideo custos non potest facere Atturnatum quia non habet proprietatem 
13. E. 1. attorney. 103. . In a writ of Attaint the defendant made an attorney in the chancery by a common writ de Attornato faciendo, the tenor whereof was ad lucrandum& perdendum in loquela quae est coram Iustitiarijs per breue nostrum inter I. S. petentem,& I. N. tenentem de placito terrae &c. but the warrant of the plaintiffs attorney must be thus ad conuincendum 12. jur. de placito terrae &c. per viginti quatuor &c. 
2. E. 3. Garrant. dattour. 21.  But the power& authority of the attorney is by the iudgement determined and carried back to the master. Wherefore it was said 4. E. 3. that after iudgement the attorney was not received to release the damages, nor to aclowledge satisfaction 
4. E. 3. attorney. 18. 34 E. 3. 95. 34. H. 6 51. 1. E. 2. Gar. rant. 22. : contrary to the book of 33. H. 6. k But there is great difference betwixt a bailie,& a deputy: for though a bailie haue a larger scope of authority, and power then an attorney or solicitor: yet he hath but an authority: but a deputy hath an imperfect interest mixed with an authority, which by cases accommodated to this purpose shall be evident. The bailie of a mannor cannot lease the lands of his Lord but onely at the will of the lord: for I do not take the book of 2. E. 4. to be law, that the bailie may lease lands to hold at his own will, yet that book giveth an action of debt, if a rent bee reserved vpon the lease to the lord, not to the bailie 
2. E. 4. 4. : but 8. E. 4. is the better law in my opinion, where it is held, that the bailie of a mannor cannot make any lease of the mannor, nor of any parcel of it without special commandment of the Lord to do it 
8. E. 4. 13. . But if he cut down trees, or kill any beasts going vpon the land of the manor, without lawful cause, an action of the case will lye against him 
2. E. 4. 13. . And 19. E. 3. it was held, that by no usage in the world a Bailie or Steward of a manor could lease the freehold 
19. E. 3. Feoff. 68. . But it is held by Cates by 8. E. 4. that the Lord may give power( in express words) to his bailie to lease land, and if the bailie having received such authority do lease an acre of land unto a stranger, and doth not give to the Lord notice thereof, if the Lord enter into this acre, the lessee may punish him by an action of trespass, and yet he had no notice thereof: but the reason is because he had before given such a power to the bailie 
8. E. 4. 1. et 9. Dutch. de Suffolkes c. per Cates b. . And therefore I think that the book of 2. R. 3. which is, that the bailie hath power to lease land, and to improve it, is to be intended( by special warrant, and authority of the Lord committed unto him.) But it seemeth that of himself he may sell trees if there be great abundance, and may repair houses with them, but he cannot re-edify houses with them, if they be fallen 
2. R 3. 14. 12. H. 7. 25 . But that a deputy hath an interest conjoined with an authority in the thing, which is deputed unto him may be thus proved, 11. Elizab. it was clearly resolved, that two daughters being heires to the Constable of England, might make their sufficient deputy to exercise the office for them, and after marriage that the husband of the elder only might perform the office 
11. Elizab. 285. Dy. . And 39. H. 6. it was agreed by all the Iustices, that if a man haue an office, and maketh a deputy, which misuseth the office, the grantee or inheritor of the office shall forfeit it, for the deputy is sub officiario, and the officer remaineth officer until the forfeiture 
39. H. 6. 32. . And these words( that the deputy is sub officiario) are so in my conceit to be understood: as the lessee at will is under the lessor, in case of a demise of land: But there may be a forfeiture in the one case, and not in the other, because in the office deputed there is a special authority mixed with a special interest. And Quaere, whether for the debt of the deputy the office may not be extended whilst it is in the deputies hands.  Codign. 
surely it seemeth that the deputy hath no interest at all in the office, 
4. That by the civil Law, contrary to the common Law, there is no maner of interest in a deputy.  and that may appear by the observation of ancient times. For if a man may compare greater things with less, the Quaestor of a province was a deputy to the President or governor of a province in his absence: but yet their power was diverse, and the interest was not assigned, but resembled, as Caesar doth rightly distinguish them: Aliae sunt legati partes, aliae imperatoris, alter omnia agere ad praescriptum, alter libere ad summam rerum consulere debet 
Caes. lib. 3. de bello civil. . The office of a deputy or Lieutenant, and the office of a Gouaernour, or Commaundour are diverse: the one of them( that is the deputy) doth all things by the prescript of his commaundour: the other freely provideth for the main, and principal consequence of things. And briefly and substantially he thus describeth the duty of a deputy: Officium legati fiduciariam operam obtinere 
Caes. lib 2. de bel. civi. : And that a deputy is but as a minister to the principal officer, may appear by Ciceroes precept to his brother: Sit annulus tuus non vt vas aliquod, said tanquam ipse tu, non minister alienae voluntatis, said testis tuae 
Cicer. ad Q. fratr. . Let not thy ring be as a vessel to be used at any mans pleasure, but as thyself, not as a seruant to an other mans will, but as a witness of thine own.  Nomomath. 
What if the Master do promise unto his Bailie or attorney, that if he can procure him the possession of the land in question, he shall haue the half, or some part of it for his reward: Will your laws allow of such an assumpsit?  Codicgn. 

1. Th●t the bailie or attorney may not take half the land for purchasing or compassing the other half.  Our Law doth not allow it: But he may safely take a special collateral reward for that particular effect 
Gazalup. in ver. procurat. .  Canonolog. 
So in our Law, he that giveth part of the profits of a bnfice to be admitted to the bnfice, 
2. That the like matter is forbidden by the Canon Law.  is so far from being allowed, that his fault is accounted to be enorm, and indispensabile 
13. disti. nerui. : For it is held to be simony,& corrupt cheuisance, if any valuable consideration be given in such regard pacto, velfacto. And he that buyeth so, is called Simoniacus of Simon Magus, and he that selleth so, is called Gieziticus of Giezi 
r. q. 1. Studet. .  Anglonomoph. 
In our Law it is held, 
3. The common Law agreeth with them.  that there is no diversity, where a man selleth land depending a writ petitorie of the same land, or do give it depending the writ: for in both cases there is Champertie 
8. E. 4. 19. .  Nomomath. 
I pray you let me know whether any persons be accountable by the mere and sole operation, and enforcement of Law.  Codicgn. 
Yes, there be two sorts of accounts: public, and private. 
1. Two sorts of accountants by the civil Law.  The public accounts are such as are to be made by a public officer, who is charged with some special administration appertaining to the common weal 
L. officialis c. de epis. et clear. . For the Presidents of provinces amongst the romans did customablie use to make up their accounts before they departed out of the province, to which account they were obliged by Law: Therefore Cicero saith: Illud certe factum est quod Lex iubebat, vt apud duas civitates Laodicensem et Apamensem, quoniam ita necesse erat, rationes confectas et consolidatas deponeremus 
Cicer. ad Rufum. . private accounts are such as belong to private men by the administration of their goods or affairs, as the proxies or bailiffs of private men.  Canonolog. 
The same difference do we hold in matters of account 
d.l. officialis ibid. . 
2. Likewise by the common Law.   Anglonomoph. 

3. And also by the common Law.  And by our Law there be some which be accountable by Law: some by a particular charge imposed vpon them, or undertaken of them. And in the former case a writ of account will lye, though there be no privity infacto, but only in Law. Wherefore Mast. Prisot said 33. H. 6. that the king might bring a writ of account against one, as his bailie, who did occupy the land de son tort demesne, of his own wrong. And the same Law is( as he there affirmeth) if a man occupy the manor of a common person de son tort demesne. And according to Wangf. opinion, if a man seize an Infant as warden in Socage, and is not the prochein amy, yet a writ of account lieth against him: but there he claimeth to the use of the Infant 
33. H. 6. 2. per Prisot et Wangf. . And the same Law seemeth it to be to Mast. brook 
Brook account 8. , where a man presumptuously and of his own head undertaketh to be my bailie, a writ of account will lye in such case: But if he enter to his own use, there it seemeth( saith he) that a writ of account will not lye: for there Ne vnques son Receiuor pure account render, is a good plea. And 49. E. 3. a writ of account was brought against the Lord by the tenant, as occupier of the land which the tenant now plaintiff holdeth of the defendant in Socage, and the def. said that the ancestor of the plaintiff did hold the land of him by knights service, wherefore he seized the land in ward 
49. E. 3. 10. . By which case it appeareth that a writ of account is admitted to lye against the occupier of the land without any privity in facto. And 4. H. 7. it is held by Brian, that if a man receive my rent of my tenants without my assent, yet I shall charge him for the possession, and receipt of the rent 
4. H. 7. 6. . But a writ of account will not lye against a disseisor, because that cannot be without privity in Law, or in facto, as by assignment, or as Warden, or in like sort, or by the pretence of the defendant of occupying to the use of the plaintiff 
2. Mar. Br. account 89. .  Nomomath. 
I will not press you any further with moving doubts of accounts, but will now make transition to other matters that remain to be discussed.   

The fifth Dialogue. Of Wast done in a mans Ground.  NOmomath. 
The next matter that by order offereth itself to your conference, is to treat of Wast done in a mans land: And for my more perfect apprehension of the things concerning that point, I will prescribe unto you certain particulars, wherein you may employ your travell for my further instruction. First, of what things Wast may be committed. 2. What thing properly your laws censure, and determine to be wast. 3. What punishment by your laws is to be inflicted vpon these that commit wast? You shall do me great pleasure in unfolding the secrecy of your knowledge hereof. And first to begin with the first, let me know of what things wast may be committed.  Codicgnost. 

1. Of what things wast may be committed by the civil Law.  Wast may be committed in suffering the walls of houses, or closes to fall 
Gazalup. verb. rudera. . So if there be a wood which is thick with great timber trees, which in Latin is called Saltus, or which is but thinly set with slender trees wherein hunters may ride up and down, which the Latinists do call Nemus, spoil or havoc made in such woods may be accounted wast 
C. de fun. pa. et Salluen. li. 11. . 
2. Cutting of wood in silua cadus by the civil Law is no wast.  But to cut wood in silua caedua which is apt to be cut is no wast, and therfore it is said apt to be cut, because it groweth easily again. Neither doth wast seem to be committed in silua pascua, if brush-wood, small wood, or underwood be cut for the better pasturage of the beasts that go vpon the soil. Likewise wast may be committed in cutting down trees which grow sparsim, here& there in the land which is demised to farm: for this is wast in the land itself, because Arborum non est seperatum corpus a fundo. But this word arbour extendeth by our Law very far, for it may be affirmed of Vines, which notwithstanding by reason of the tenderness of them may seem to obtain a middle nature betwixt a three, and an herb. Likewise to ivy, though that do rather cleave to trees, then participate the nature of trees: And the name of arbour doth extend to reedes, and to willows. But the cutting of some trees, that is the lopping or pruning of them may be more available for their growth, so that only their cutting down, and not their cutting only shall be adiudged to be Wast. Such trees are name of us Arbores caeduae: which may grow again either by the same stock, or by some other imps, which may be grafted vpon them. Such are the Cherie three, the ash, the medlar three, the oak, the laurel, the alder three, and the poplar three 
ff. Arbo. furtim. caesa. l. 1. et l. vitem. et in gl. ff. de arbo. caeden. l. 1.§. arbo. . But the cutting down of such trees may well be called wast, and is punishable by our Law. And to open the sluices of the river Nilus is sharply punished 
C. de Nili. agge. non rumpen. l. unica. .  Canonolog. 
Our Law doth not in any of these things varie from yours.  Anglonomoph. 
Of all these things, unless it be reedes, iuy,& the like things which do more approach to the nature of weeds, then of trees, we hold in our Law that wast may be committed.  Nomomath. 
Well, then I pray you show what may properly be termed Wast by your Law Anglonomoph. and for that purpose consider well of the points of the former speech of Codicgnostes, who hath shewed promiscue, both of what things wast may be committed, and what may be said to be Wast.  Anglonomoph. 
I will by your patience severally confer the parcels of his discourse with the determination of our law concerning that which may properly be said to bee waste( for the other point will be thereby manifest,) as he hath before pronounced by their law. Waste may bee committed in the decay or demolishment of an house: 
3 The common law agreeth with the civil that wast may be in the decay of an house.  this likewise is waste by our law; therefore in an action of waste, 42. E. 3. the declaration was that the tenant had done wast in certain tenements demised unto him by the predecessor of the plaintiff for term of life, and the wast was assigned to bee in a chamber, a furnace, and a grange: and the defendant said, that there was no chamber at the time of the lease made: but by the opinion of Cand. he ought to haue said( nor at any time after) wherefore so he did 
42. E. 3. 22. . But the termor is not bound to repair houses which were ruinous at the time of the lease made unto him 
12. H. 4. fol. 5 10. H. 7. 3. 12 H. 8. 1. 7. H. 6. 40. . And if all the house in such case do happen to fall save onely the posts, and the termor abateth the posts, this is not waste, because waste must be assigned in a house( or some like tenement) so it is if a house newly edified be abated, which house was never covered 
40. Assis. pl. 22. ,( and therefore may not properly bee said to bee a house, as I take it by the civil law: for a house according to the civil law doth consist of foundation, wall, and cover 
Spi. egeli. verb. aedes& domus. .) And 38. E. 3. waste was assigned in a grange, which was worth but 4. s. and because it was of so small value, that none would hold it nor maintain it, it was held to bee no waste 
38. E. 3. 7. . Yet M. Fitzh. citeth a case out of 34. E. 3. that if waste be done by the warden to the value of 20. pence, this shal be adiudged waste, and the plaintiff shall recover 
Fitz. N.B. 60. c. . And the book 14. H. 4. is, that if a man cut trees, but to the value of three shillings 4. pence. This shall be adiudged waste 
14. H. 4. 11. . But a wall or pale, which hath been covered with thatch or timber, if the tenant suffer it to be discovered, this shalbe said to be waste 
44. E. 3. 44. 10. H. 7. 21. 22. H. 6. B. 16. H. 7. per Fin. waste. 131. . But if a house become ruinous for default of some covering, at the time of the death of the ancestor, and after the tenant suffereth the house to be more ruinous, the heir may haue an action of wast for the late ruin, which happened after the death of the ancestor 
2. Mari. Br. wast. 117. . Neither is it sufficient in bar of a writ of waste of a house that the defendant hath built a new house in lieu of that which is fallen, but the defendant must say that it is as much in length, and as much in latitude as the other was, or at least he must say, that it is as profitable: but when a house is ruinous and decayed at the time of the lease of it made, and it afterward falleth, and the defendant buildeth a new, it is not necessary that he should make an other house of equal longitude or latitude 
22. H. 6. 18. . And the necessity of building a house ought to come in question, as if the lessee haue great need of a stable: and if no house be built vpon the land at the time of the lease, the lessee may not cut trees to make an house 
11. H. 4. 32. . But if waste bee made by the kings enemies or by tempest, the tenant shall not therefore bee punished by a writ of Waste 
43. E. 3. 6. . Yet in such case a special covenant will bind the tenant. And therefore it was adiudged 15. Elizab. that whereas the termor did covenant and agree pro se& executoribus, to repair and maintain the houses, and to find principal timber, which is decayed by the default of him or his executors, and dieth, and the house is burnt in default of the executors, that a writ of covenant in this case would lie against the executors, and that damages should bee recovered de bonis testatoris, and not condicionally, if there were none such, of their own goods: and yet this happened by casualty 
15. Eliz. 324. Dy. . But the reason thereof is given in an other place, Modus& conuentio vincunt legem 
28. H. 8. 19. Dy. . And 29. Henrici octavi, the lessee of a meadow did covenant and agree to keep and maintain the banks in good repair, and the said banks were drowned& overflowed by high waters or sudden flood, yet the lessee is bound to repair and maintain them because of his covenant, but according to the opinion of Fitzh. and Shelley, because the decay of the banks was the act of God, he ought to haue convenient time to repair them 
29 H. 8. 33. Dy. 35 H. 8. 56. Dy. . Now I will show how and in what cases the cutting of wood& trees is wast by our law. It is clear by our law, that the tenant may cut trees for the amendment of houses, and the reparation of them, 
5 The tenant by the common law may cut trees for the reparation of houses.  but if the houses be decayed by the default of the tenant, the cutting of trees to amend them is waste 
44. E. 3. 21.& 44. 11. H. 4. 32. : but the lessee may not in any sort cut apple trees for the amendment of houses 
Temps E. 1. waste 122. . And 7. H. 6. it is said, that he shal not meddle with great timber-woode without the assent of his lessor: otherwise it is of seasonable wood which is but of the age of ten yeres or thereabout 
7. H. 6. 38. . But the cutting of dead wood is not waste 
Fitzh. N.B. 59. M. : And the termor hath house-wood, hedge-wood, and firewoode belonging to his term of common right: and he may cut wood for that purpose 
21. H. 6. 50. . But if he cut wood to burn where there is dead wood sufficient this is waste 
20. E. 3. waste. 32. . And it is not waste to cut seasonable wood which hath used to be cut every twenty yeares, 
6 The common law agreeth with the civil in the cutting of Silua cadua.  or within that time 
7. H. 6. 40. 11 H. 6. 1. . And the cutting of thorns is no wast because they are not fit for timber 
46. E. 3. 17. . Neither is the cutting of willows waste, unless they lye about the site of the mannor 
40. E. 3. 15. 10. H. 7. 2. 12. H. 8. 1. 12. E. 4. 1. . And the termor may cut vnder-woode growing under the great trees, and the high wood, but if there bee no high wood, or great trees there, he can not cut at all 
40. E. 3. 25. 10. H. 7. 2. . And whereas Codicgnost. hath said, 
7 The common law agreeth with the civil in tolerating the lopping of trees, which may be available for their growth.  that the lopping& pruning of some trees may be more available for their growth,& therefore the cutting of them is not wast, because they may grow by the same stock or by some other imps grafted vpon it: In very truth our lawe runneth with this stream. For as I haue shewed before, to cut seasonable wood is no waste: but if certain sprowtes or branches do grow vpon the stock, the cutting of these sprowtes or branches or the destroying of them is wast 
5. E. 4. 102. 9. H. 6. 42. 11. H. 6. 1. 22. H. 6. 14 . And plants which can not be conveniently sold, neither bear any fruit, yet( because of the possibility of the fructifying of them) if they bee cut down, this is waste 
20. E. 3. waste. 32. .  Nomomath. 
Well, I pray you satisfy me in this: If a man ought to keep certain banks in repair, whereby the land adjoining, and which he hath in farm, may be better kept& yield more profit, and he doth not repair these banks, but suffereth the sea to overflow them, and so to make the land a great deal worse, whether is this by your law accounted waste Anglonomophilax, according as Codicgnostes hath shewed of opening the sluices of Nilus.  Anglonomoph. 
By our law if such banks be not repaired, whereby the land demised that is adjoining is overflowed& made unapt for present profit, 
1 That both by the civil law and common law where land is empeired by the inundition of water this is wast.  this in our lawe is accounted waste 
20. H. 6. 1 .  Nomomath. 
Well, now I pray you resolve me in this, whether is it lawful for the termor to dig in the land demtsed, for water, mines, or treasure hide, or this shal be accounted wast, if he do it without the permission of the lessor.  Anglonomoph. 
He that cometh to land or to any other thing by an other mans grant or demise can not use the land or that which is granted, 
1 That by the common law he that cometh to land by an other mans grant ought to use it according to the grant.  further then the grant or demise being reasonably construed will permit. Therefore if a man be seized of a stagne or pond stored with fish, and he sell all the fish in the pond to a stranger, the grantee may not dig the land &c. to make a trench, because he may take the fish with nets or other engines 
Perk. Tit. grants. 23. . But if a man grant to me licence to make a trench from such a fountain in his land to my mannor of Dale, and that I may put a conduit-pipe in the land to convey the water to my mannor, if after the pipe bee stopped, I may dig in the land to amend the pipe 
13. H. 8. 15. : because that is as it were implied in the grant: but if a man plough up meadows demised unto him, this is waste 
20 H. 6. 1. 16 H. 7. wast. 131. Fitzh. N. B. 59. N. . So if the termor do alter wood into arable, this is wast, or arable into meadow, this is wast. For this is prejudicial to the inheritance: for the evidence concerning the land serveth to prove an other thing 
29. H. 8. 35. Dy. Maleuerers. C. . And so it is if land bee overflowed for default of repairing banks 
20. H. 6. 1. : but of this I haue lately spoken, and therefore will rather apply other cases to the opening and explaining the reason hereof. The digging in the land demised for clay, 
2 The digging for day or coal in the land demised is wast by the common law.  or for ston, or for coals shall bee said to bee wast 
2. H. 7. 14. 22. H. 6. 21. 9. H. 6. 42. 17. E. 3. 7.  for the reason abovesaid: and likewise because the soil by that mean becometh worse 
22. H. 6. 18. :& according to M. Fortescues report 20. H. 6. if the particular tenant haue not kept the water from the ground, so that it is made waste by the growing of rushes and other weeds, this hath been adjudged to be wast, and the words of the writ were: 
3 The suffering of the ground of the ground to become rushie or weedy, by the common law is waste.  Quòd permisit aquam terram illam inundare, ita quòd deuenit iuncosa 
20. H. 6. 1. per Fortesc. . But 33. E. 3. the defendant justified in a writ of waste because he did cut down an elm three in the place where the waste was assigned, and did make a ditch in that place to water cattle, which went vpon that ground, which was necessary, because the water was very low, and almost dried up in that place,& by that mean he deduced water out of the earth, and this was adiudged a good answer 
33. E. 3. Double plea. 9 .  Codicg. 
That which you haue said is to reason consonant, to our law correspondent: for as to your first case of the clearing or amending of the conduit-pipes &c. Though it be in another mans ground, this in our law is not accounted injurious 
l. 1. c. de quae duke. l. 11.& l. de cernimus co. 11. li. 2. . 
4 That the civil law agreeth with the commn law in suffering and to amend conduit-pipes in another mans ground.  But wee haue a rule in our lawe: that if a man ought to convey water per subterraneos meatus, through certain chinks or crauies of the earth in an other mans ground, he must not do this by a leuill of stones, but with pipes of lead, because the other mans ground is by stones more amnoyed and impaired 
ff. de contrah. emp. l. si aquae dust. . But for the improouing of ground from worse to better, is clearly permitted by our law. As to turn waste ground into arable, or fennish ground into firm ground, this we account rather a benefit to the owner of the soil, then an injury 
c. de fund. patr. l. fi. li. 11. . So it is, if a wood become arable 
c. quod per noual. de verb. signif. : but to destroy any thing in an other mans ground, or to dig a pit, and so to alter the form and nature of the soil, and by that mean to make it worse is accounted of us very injurious, but to repair an old building, or to make some commodious addition, is not wrongful, but beneficial, because Non videtur nouum opus facere, said vetus reficere 
ff. de noua. l. 1.§. nouum. et§. si quis aedificium. .  Canonol. 
Our lawe doth not withstand any of these assertions.  Nomomath. 
Well, now I pray you proceed to speak of the penalty which he is to suffer by your laws that committeth waste.  Codicgn. 

1. The punishment of wast by the civil Law.  By our Law he that in such case will deny the wrong done shall be punished with double damages: But if he justify, and it be found against him, with single 
ff. de insti. ac. l. 1.§. 1. . But he that doth break the sluices of Nilus, so that very great injury is done, and to very many, he is burnt in the same place, where the fault was committed, in a fire of the height of twelve cubits, and his goods and lands are confiscated, because it is crimen, quasi laesae Maiestatis 
C. de agge. Ni non rump. l. ur. ac. .  Canonol. 
Our Law in this doth not gainsay you.  Anglonomoph. 

2. The punishment of wast by the common Law.  By an action of Wast at our Law, the plaintiff if it be found for him, shall recover triple damages 
Fitzh. nat. bre. 58. H. : and execution may be had by Elegit of the lands, which the defendant had at the time of the inquest taken 
17. E. 3. 5. 18. E. 3. 38. 31. E. 3. execute. 66. : and he shall recover likewise the place wasted 
Stat Glouc. cap. 6. .  Nomomath. 
I will put you to no more pains in this matter, but will descend to other things which haue not yet been discussed.   

The sixth Dialogue. Of Parceners.  NOmomath. 
Let me know Codign. whether in your Law there be any definition set down& established touching Parceners, as they are termed at the common Law, and concerning the making of partition betwixt them, agreeable to the common Law.  Codicgn. 
I would first that Anglonomoph. should show who be Parceners at the common Law, and in what sort partition is made: otherwise I should but rove at an uncertain mark.  Nomomath. 
I pray you do so Anglonomoph. for that course is not to be disliked.  Anglonomoph. 
Mast. Littleton, 
1. Two sorts of Parceners: Parceners by the common Law and Parceners by custom.  a learned man in our laws, and a great patriarch of our profession, maketh two sorts of Parceners: Parceners by the common Law, and Parceners by custom. Parceners by the common Law are when a man or woman seized of lands or tenements in fee simplo, or fee tail, haue no issue but daughters, and die, and the tenements descend to the daughters, and they enter into the said lands or tenements, now they are Parceners, and how many daughters so ever they be, they are but one heir to their ancestor. 
2. Who be Parceners by the common Law.  And they are called Parceners, because by the writ, which is called de Particione facienda, the Law will compel them to make partition of the land. Also if a man seized of tenements in see simplo, or in fee tail, do die without issue of his body engendered, and the tenements descend to his sisters, they are Parceners by our Law. So if his lands descend to his Auntes 
Littlet. lib. 3. c. 1. fol. 54. . And none bee called Parceners in our Law, but women, or the heires of women which come to lands and tenements by discent. For if two sisters purchase lands or tenements, thereof they be called Iointenants, and not Parceners 
Littlet ibidem fol. 56. . But brethren may be Parceners by the custom, as by the custom of Gauelkind in Kent 
Littlet. ibid. 59. .  Codicgn. 

3. Who be Parceners by the custom.  We haue an action in our Law very like to your above mentioned writ of Particione facienda, and it is called actio familiae herciscundae, and it lieth for them which haue a common inheritance to bee divided betwixt them: As when two sisters, brothers, or kinsfolks are instituted heires, and by that mean are reputed as several heires to the ancestor, or him that instituteth them 
ff. famil. hercis. l. 1. et 2. C. de verb. sign l. sin. . For if the testator pointing with his finger at three several persons do say unto them, quilibet vestrum haeres mihi esto, 
4. That by the civil Law where three heires are instituted, they are not reputed as one heir.  his meaning by our Law is taken to be this, that every one of them should be heir in parte, non in solidum, for materia subiecta the thing itself doth require it, because it is unpossible by our Law, that every one of them should haue the inheritance in solidum 
L. hoc artic. ff. in fi. ff. de haere. insti. . But if he do not speak distributive, but collectiue: as if he said, Quisquis mihi haeres erit, debt Titio centum solidos: now whether there be one heir or more heires then one, yet Titius shall haue but five pounds, because of the collectiue word quisquis 
L. ab omnibus in princip. ff. de leg. 1. et l. si quis in fundi vocabul. in fi. eo. ti. . But if the Testator do say, Quicunque primò ingressus fuerit Castrum, habebit centum solidos, and two do enter the Castle together, they shall every of them haue five pounds, because of the distributive word quicunque, which may be verified either in one or more doing the same act at one time, because primus est qui alium ante se non habet 
L. qui filium§. 1. ff. de leg. 1. . And if the Testator say, Quilibet haeredum meorum, debt Titio decem solidos, Titius shall haue as many ten shillings as their be heires 
L. si pluribus. et ibi no. gl. ff. de leg. 2. : which proveth that by our Law, the several heires are not accounted as one heir.  Canonolog. 
Our Law holdeth not the contrary.  Nomomath. 
You haue good reason for it. But I pray you resolve me Anglonomoph. are these which you call Parceners reputed in your Law as one heir to all intents.  Anglonomoph. 

5. That by the common Law parceners are reputed as one heir, as to the discent of lands.  Yea to all intents in regard of the discent, though as to the making of partition it accounteth them as several persons 
Fitzh. nat. bre. 197. A. . For a Nuper obijt ought to be brought by that Coparcener, who is deforced from the tenements against all the other Coparceners, 
6. Parceners in regard of the partition are accounted as several persons.  which do deforce her, although some of them haue nothing in the tenancy 
32. E. 3. Nuper obijt 7. 9. Ass. pla. 8. : For several tenancy, or nontenure is no plea in a Nuper obijt, because of the privity of blood 
7. E. 3. 16. 9. E. 3. Nuper obijt 8. 8. H. 6. 8. .  Nomomath. 
Whether shall a writ de Particione facienda be used against Iointenants or tenants in common, as well as against Parceners, or some other remedy, shall be used against them.  Anglonomoph. 

1. The statute of 31. H. 8. giveth a writ de Particione facienda as well to Iointenants and tenants in common, as to parceners.  Before the Statute of 31. H. 8. Iointenants and Tenants in common were not compelable by writ to make partition of lands and tenements which they vndiuidedly held. But by that Statute a writ de Particione facienda may be sued against them as against Parceners 
31. H. 8. c. 1. rastal partition 3. . But by the common Law Iointenants may make partition by mutual assent without deed 
47. E. 3. 22. 19. Ass pla. 1. . And by such partition the jointure is severed 
30. Ass. pla. 8. .  Codicgn. 

2. The three several actions against Parceners, Iointenants, and tenants in common at the civil Law.  By our Law several remedies are used against these which be both of one blood or one family, which you haue termed Parceners: as an action de familia herciscunda: and an other maner of action against such as come to the land by joint title, though not by one discent, which you haue termed Iointenants, namely an action which is called of us Actio pro socio: and an other against these which come not in by joint title, but yet claim under these which came to the land by joint title, as by your Law are Tenants in common, against whom, or betwixt whom, for the effecting of partition, an action lieth at our Law which we call Actionem de communi diuidundo.  Canonolog. 
To this our Law is not contradictory.  Nomomath. 
Let me now understand in what sort partition of lands or tenements and other things is made by your laws.  Anglonomoph. 
Of lands and tenements the partition by our Law is to haue a several part or portion, as to haue a third part, 
1. Diuers kinds of partion at the common Law.  
1. A partition to haue a third part, or a fourth part.  if there be three Coparceners, or a fourth part, if there be four &c. And if there be two Coparceners, 
2. A partition by way of release.  and one of them releaseth to the other with warranty: this hath been held to be a good partition in Law 
44. E. 3. Counterplee de vouch. 22. 34. E. 1. Partition 17. . And partition of lands is sometime made by the grant of a thing de novo: 
3. partition by the grant of a thing de novo.  as if an hundred shillings of rent be granted by one of the Coparceners to two of her sisters for equality of partition 
2 H. 6. 14. . So when land entailed is divided betwixt Parceners, 
4. partition by way of reservation.  and a rent is reserved vpon the partition for equality, the rent reserved shall be in tail, and of the same condition whereof the land was at the time of the partition made 
2. H. 7 5. 15. H. 7. 14. . But a partition of a Mill is by taking the third part, 
5. partition by taking the 3. part, or the 4. part of the profits.  or the fourth part of the profits, as the case requireth 
11. E. 3. brief 478. . And 45. Ed. 3. it was ruled, that Milles, Douecots, and the like, could not be actually, locally, and as I may say artuatim, as it were by merchants divided. But if a woman ought to bee endowed of the third part of such things, the thrid part of the profits ought to bee assigned unto her 
45. E. 3. Dower 50. . Yet 47. Edw. 3. the case was, that two Iointenants were of a Mill, and they agreed to repair the Mill, the one of them of the one side, and the other on the other side in perpetuum, and after the Mill was leased to farm, and they took the rent severally according to the moieties, and the Inquest said, that their meaning was, that the partition should bee good against them, and their heires 
47. E. 3. lib. Ass. pla. 22. . But Quaere, whether the sheriff by writ de Particione facienda may make any such partition. Likewise partition may be of a reversion, that one of the parceners shall haue the reversion of three acres, and the other the reversion of other three acres, and it may be without deed 
Fitzh. nat. bre. 62. D. 28. H. 6. 2. . And so partition may bee made of a way 
21. E. 3. 2. . And also of a seigniourie 
27. E. 3. 29. . But of an advowson the partition is to present by turn 
38. H. 6. 9. 42. Eliz. 87. Corbets case per just. Walmesley Co. .  Canonolog. 
Our Law agreeth fully with yours in this, 
6 A difference in the civil law where a thing that hath partes coharentes is divided, and where it hath partes distantes.  for either a thing hath partes cohaerentes, as a house, and this may be divided by a several occupation: Or else it hath partes distantes, as a load of wood, or a flock of sheep, and this may be membratim or corporally severed and divided 
Ber. de excess. prae lab. lib. 6. .  Codicgn. 
The very same difference doth our Law retain 
L. non ampli.§. cum bonorum. ff. de legate. 1. .  Nomomath. 
Well, I will stick no longer in this plain title. Now prepare yourselves for the sifting of more intricate points, then haue heretofore been handled by ye sithence the beginning of this second conference.   

The seventh Dialogue. Of Conditions.  NOmomath. 
In the treating of Conditions, I will not trouble you with any exquisite definition of Conditions, because I do imagine that I shall draw that out of the resolution of the cases, which I shall propose unto you. My first question therefore is this: Whether doth the word ( Si) always import and signify, a condition in matter of contract and limitation of estate.  Codicgnost. 


1. Si doth not always signify a condition in the civil law.  
2 Sometime it signifieth an uncertain cause 3 Sometime it signifieth a certain cause. 4 Sometime an uncertain event.  
5 Sometime a condition.   It doth not always signify a condition, but sometime it signifieth an uncertain cause, as I promise to Titius ten pound, if he do accomplish my business. Sometime it signifieth a certain cause, as if the judge do give iudgement for me: sometime it signifieth an uncertain event conditional, as I promise thee twenty pound if I. S. be in Westminster hall such a day, and sometime it signifieth a condition or a conditional disposition, which always suspendeth the premises or matter precedent 
l. itaqueff. si cert. pet. l. de monstra. ff. de condi.& demonstr.§ fi. Insti. de verb. oblige. : as if I promise unto you Stichus my bondseruant,& if I do not deliver him unto you within such a day, then I will give unto you twenty pound nomine paenae, here is both a condition,& likewise conuentio paenalis, which is presently to take effect vpon the breach of the condition 
l. Stipulatus.§. 1. ff. de verb. obli. . So if the testator say, if my bondwoman shall bring forth three children at three labours, let thē be free: now if the woman bring forth four children at two labours, they shall all bee free: for though there bee four children, yet there is but a double labour, and in the eye of law bringing forth but two children: for all that bee brought forth at one birth, are but as one child in regard of their nativity, as our law intendeth, because the law respecteth that quod plerunquefit, and for the most part one child is born at a birth, and not two or more 
l. Aretusa. ff. de stat. homi. l. cum matter.§ fi. ff. de fidei commis. . And in this case, benigna interpretatio facienda est in fauorem libertatis. And because it can not bee well understood whether of the two children shall be free, therefore both by construction of law shall be free.  Nomomath. 
This seemeth strange to me, that two children should bee one child, two procreations one birth, unless it bee because the parents were one person in law, when they begot them. And surely Quintilian maketh two distinct procreations in your case,& therfore he saith. Quid refert an ex eisdem prima illa duorum corporum antmorumque compago seminibus oriatur? sibi quisque firmatur, sibi quisque componitur,& dvo pluresue fratres nascuntur fato singulorum 
Quintil. in Gemin. languent. : And Esau and jacob famous twins were born so continuatly( as I may say) together, that the later did hold the fate of the former 
Genes. 25. . Yet God forbid that wee should account these two one. Saint Augustine boldly and wittily distinguisheth them thus: Vnus duxit mercenariam servitutem, alius non seruirit: vnus a master diligebatur, alius non diligebatur: vnus honorem, qui magnus apudeos habebatur, amisit, aliter ademptus est. Quid de vxoribus, quid de filiijs, quid de rebus, quanta diuersitas 
August. lib. 5. de civitat. De. c. 4. ? And therefore surely in this point I take your law to be contrary to the course of nature.  Codicgnost. 
It is not in the supposal of one procreation of two twins, either contrary to nature, or arte: not contrary to nature, because as there is one conception of two twins, so there is one puerpercie, though it bee finished at diuers times, for the labour still continueth, not contrary to arte: for the Astronomers hold, that twins are always born under one Horoscope, under the same constellation, and the same situation of the stars: for the Horoscope in Astronomy, if it be formally taken is nothing else but horae inspectio, if it bee materially taken, it is that part of the zodiac which ascendeth vpon our hemisphere: for the zodiac circled is always rolled about, and some portion of it doth always arise to us, some doth alway decline: some is in one region of the heauens, some in another, and children being born under one situation of the stars, as they be like in the qualities both of the body and mind: so in the producing them to light, there is but one labour: in their cressence in the womb, there is but one operation of nature.  Nomomath. 
You haue rather answered me, then satisfied me: for I am persuaded, that I shall never bee of your opinion whilst I live, neither will I applaud to your lawe in this. But Anglonomophilax, I hinder you from examining the parcels of Codicgnost. his precedent speech of conditions.  Anglonomoph. 
I will not meddle with Codicgnost. his midwiferie in handling matters of law, but will turn sail from it: as Cato disliked to prattle with women in the Senate house 
livi. li. 34. . But as to the assertions of law, which he hath set down, they shal not glance from me without touch. Whereas he hath said that this word ( si) doth signify an uncertain cause in their law, so it doth likewise in ours, 
6. Si doth signify an uncertain cause at the common law.  as appeareth by Boldes case in my L. Dyers reports which was thus. R. bold brought an action of debt against Molineux for 30. pound, vpon an obligation endorsed with this condition, that if it fortune Joan Molineux to decease before the feast of S. John baptist which shall be in the year of our Lord 1553. without issue male of her body by the said R. B. lawfully engendered then living, that then &c. and the defendant said, that after the making of the said writing& before the said feast the aforesaid Joan at B. in the county of L. dyed without issue male of the body of the said woman by the said R. B. lawfully engendered then living: and the plaintiff said, that he ought not to bee barred from his action: for he said that after the making of the said writing,& before the said feast, namely the 12. of june, anno &c. the said plaintiff at M. in the county of Lancaster, took to wife the said I. and they had issue betwixt them H. bold, and after& before the said feast the said I. and the said B. dyed, the said H. being the son of them both at the time of the death of the said I. being then full living, and after and before the said feast, namely the twelfth of june the said H. B. at B. aforesaid dyed, and the defendant hereupon did demur in law. And the question was whether this word ( tunc) in the condition should be referred to the time of the death of the wife: and it seemed to montague and Baldwin that it should not, but that it ought to bee referred to a time certain: for every tunc relateth to his quando, but they thought that it should bee referred to the feast which is certain, and not to the death of the woman, which is uncertain: but Shelley and Knightley thought otherwise. For in diuers cases relation shall not bee made ad proximum antecedents: as if a man make a lease for life the remainder in tail the remainder over to I. S. in forma praedicta, this shall not bee referred to the estate tail, which doth next preceded, because it wanteth the word( heires) to make an estate tail, and therefore it shall be referred to the first estate. Which later opinion if it bee lawe, then by our law ( si) may signify and may make other words to signify an uncertain cause of the accomplishment of a condition 
28. H. 8. 14. Dy. Boldes C. . And whereas he hath said that sometimes it signifieth a certain cause( as if the judge do give iudgement for me:) So likewise it signifieth a certain cause in our law, 
7. Si, signifieth a certain cause at the common law.  for 8. E. 4. the case was this. An action of debt was brought vpon an obligation by the duchess of suffolk: the defendant said, that it was endorsed with this condition that if the defendant should stand to the arbitrement of the said duchess touching all maner of suits &c. betwixt him& one B. that then the obligation should be voided &c. And this was admitted to be good, and thereupon it may be concluded that ( si) sometimes in our lawe importeth a cause certain, as the duchess in this case was a certain cause of the arbitrement 
8. E. 4. 1.& 9 duchess de suffolk C. . So 23. Eliz. the case was that two were bound to stand to the arbitrement of two, if they did make their award within two daies after the date or making of the said obligation, and the obligation bore date die Sabbati ante prandium, and the award was made the same day post prandium, and this was held to be good, because it shall bee intended that it may be made at any time after the date of the obligation until two daies immediately following be past. 
8. Si, by the common law may signify an uncertain event.  And as in the civil law, so likewise by our law ( si) whether it be expressed or implyed may signify an uncertain event: for if a rent be granted for life to I. S. the remainder to him that shall first come to Paules the next day in the morning, this remainder is good, though it be vpon a( si implyed) if I. S. die not before the next day, and if one come to Paules the next day in the morning, and if he which cometh thither be a person able to take by the grant 
Assis. pl. 47. Perk. 13. sect. 56. . And whereas he saith, that by their law it signifieth a condition, 
9. Si, signifieth a condition by the common law.  or a conditional disposition, so it doth likewise in our law, as it is well recited in my Lord Dyers reports out of Bracton: Scito quòd, vt modus est, si conditio, quia causa. And as to his conceited case of the puerperie, 
4. Mari. 139. Dy.  I take his reason to bee very good, that benigna interpretatio facienda est in fauorem libertatis.  Codicgnost. 
What say you now sir?  Nomomathes. 
I say that as for such a paradoxical fantasy, Non persuadebis etiansi persuaseris. But I pray you resolve me this: If I sel to another certain land for an hundred pound, unless another the next month following do give more for it by five pound at the least, whether doth this word( unless) make a condition, or it is an idle clause and vneffectuall.  Codicgn. 
I take it clearly to make a good condition, 
1 The word( nisi. or unless) doth sometime signify a condition at the civil law.  for though the sale be pure and vnconditionall, yet it is resoluble and defeasible vpon a condition contingent 
l. 2.§. si in diem ff. pro emp. : for the words following may qualify and govern a direct grant or devise: as if the testator say, I devise unto A. a C. li. for the making of my tomb 
l. quib. diebus.§. fi. ff. de condi.& de mon. : or if he said, I devise unto him a hundred li. pro cura liberorum meorum sustinenda: or if he said, I devise unto him so much to endow certain poor maidens, or to ransom certain prisoners out of captivity, here there is no condition implyed, but onely a limitation or modification to what intent or purpose the devise is 
l. mill. C. de epi. et cle. . So if the testator say, 
2 Law is a modification or limitation of a grant is made.  I devise to Titius C. li. which I will shall be paid unto him out of my money which I haue in such a place, as namely in such a closet, or such a chest: if in the closet or chest there bee no money, then there is nothing due, but if there be a less sum, yet all the money is due by reason of the intent 
l. quidam testamento ff. de leg. 1. l. Lucius. ff. de all.& ciba. . And if the testator devise to every one of his free men a several& certain yearly maintenance out of his lands in Dale, if his lands in Dale be not sufficient for these several maintenances, yet they ought to be supplied of his other lands 
l. Paulo Callimacho.§. fi. de leg. : because the adiection and mentioning of the place was onely used for a certain demonstration of the land which should bee charged with payment, and not for the taxation or restraint of the legacy: for legatum non restringitur. But if a man devise ten pound to his daughter until she mary, by this is intended a yearly payment of x. li. 
l. legatum ff. de annu. lega. , because the word( until) doth signify in this case a limitation. And though there ought to be a multiplication of payments: yet there is a limitation ad tempus nubendi, that afterward the payment shall not be due: but if a man devise to his daughter his lands which he bought of Cornelius until she mary, this signifieth not a yearly legacy, because subiecta materia non patitur vt sit multiplicabile: But it onely signifieth an extinction of the legacy when the marriage is accomplished. For if a man devise his land in Dale to A. until he be sheriff of London, as soon as he is sheriff of London the legacy is determined, and immediately reuerteth to the heir 
L. fi. C. de leg. . For as it is in the power of the testator to make the legacy begin at a certain time, so likewise it is in his power to make it end at a certain time.  Nomomath. 
You haue put good and perspicuous diversities betwixt a condition and a limitation. I pray you Anglonomoph. show what your Law determineth of this difference.  Anglonomoph. 

3. A difference betwixt a limitation and condition at the common Law.  The very same difference is in our Law, which by cases shall be explained. A man granteth to an other his manor of B. so that he pay 10. li. yearly to the lessor, during the life of the lessor: and if the said rent be behind, that then it shall be lawful for the lessor to distrain for it in the lessees manor of S. the lessor hath a franktenement in the rent sub modo, depending vpon the will of the lessee( and the lessor,) and there is a limitation implied by Law, though not verbally expressed 
3. E. 3. 15. assize 172. . So if a man make a Lease to one for life, paying the first six yeares 3. quarters of corn, and if he will hold it longer a C. s. the word ( If) in this case maketh but a limitation 
15. E. 3. Execution 63. . So if a rent of 5. pound be granted to I. as long as the grantor, his heires or assigns shall hold the manor of W. this was adiudged to be a freehold in the grantee, but yet with a limitation 
10. Ass. pla. 8. Br. Estates 31. , ( as long as the grantor should hold the manor of W.) So if a man grant a common in his land in Dale, when he putteth in his beasts, or granteth an estouer of Wood, when he cometh to his manor of D. the grantee hath a freehold, but qualified with certain limitations 
17. Ass. pla. 7. . So it is if the king grant an office to I.S. donec been& fideliter se gesserit 
3. Ass. pla. 9. et. 6. . So if land be leased to one quamdiu se been gesserit 
37. H. 6. 29. . So if a man devise his land to his eldest son in tail, with several remainders in tail, and that the party morgaging, encumbering, entangling, or aliening the land, shall be clearly discharged, excluded, and dismissed touching the entail, and the conveyance of the entail shal be of no force unto him, this is not a condition, but a limitation: for if it were a condition, the right heir might enter for the breach, and defeat all the mean remainders in tail, which is not consonant to the intent of the Deuisour 
13. et 14. Eliz. come Newyses c. 403. . And whereas you haue said that a man by way of limitation may devise money to be paid out of his chest or coffer, and if there be no money in the chest or coffer, 
4. The common Law is more ample and large then the civil law in matter of limitation.  there is no money due, our Law dealeth more amply and beneficially in like cases. For if a man grant to me an annuity of x. li. to receive out of his coffers, if he haue neither coffers, nor money in thē, yet his person shal be charged with the annuity 
Fitzh. Nat. bre. 152. A. 9. H. 6. 17. , because the grant itself induceth a charge vpon the grantor. Yet an annuity may be granted with a limitation: as if an annuity be granted to take at every time as often as the grantor shall come to his manor of S. or as often as the grantee shall come to the house of the grantor 
14. E. 4. 4. . So if I grant an annuity of x. li. out of my land in Dale, and I haue no land in Dale, this grant is not voided, but my person shall be charged 
9. H. 6. 53. per Newt. et Cot. .  Nomom. 
Pause here Anglonom. What is Canonologus drowsy, or entred into some dream?  Canonolog. 
I was neither drowsy, nor dreaming, but the eyes of my mind were somewhat closed and shut, as the hares be when she watcheth for the hounds: for if I could haue taken any advantage of the speeches of my two companions, I would not haue been so long silent. But in truth our Law in the matters of condition before handled, hath no other oracle but the civil Law, if hereafter there happen any variance, I will not conceal it from you.  Nomomath. 
Let me then ask you this question Codicgn. A man deviseth to R. x. li. and if he wast or spend it, then he deviseth unto him x. li again: Suppose that he do spend twenty pound, whether may he afterward demand 10. li. because the devise is indefinite.  Codicgnost. 
The devise is not indefinite: 
1. Rursus, or the word( again) signifieth once again by the civil Law.  for this word( again) signifieth as much as once again, according to the rule of our Law: Rursus verificari potest in vna 'vice 
l. fidei commiss.§. si quis ff. de leg. 3. : Otherwise it might be that the executor should be charged to the full value of all the goods of the testator: For if the devisee were an Acolastus, though the executor were by the executorship a Craesus, yet all would not serve.  Anglonomoph. 
Your reason is good, but yet I would not be peremptory in this matter, for it is not in our Law so clear: For two Iudges were opposed against other two in thē like case. There is a proviso in a Lease, 
2. How far forth a word of restraint is to be extended at the common Law.  that neither the lessee nor his assigns, shall not alien to any without the assent of the lessor, but onely to the wife, or the children of the lessor, and the lessee alieneth to one of the sons of the lessor: It was left ambiguous, whether the restraint were now determined 
Mar. 152. Dy. .  Nomomath. 
Let this be the case. I am bound to pay you twenty pound, if your ship come from Russia, and after the ensealing and delivery of the bond, we make this condition, that the twenty pound which I did before owe unto you vpon the aforesaid condition, I shall now owe unto you absolutely and without condition, whether in this case is the agreement of any force to defeat the condition.  Codicgn. 

1. An agreement by word may defeat a condition in writing at the civil Law.  By our Law it is of force to overthrow the condition: for it is a renewing of the bond( as we term it) and so the later bond shall prejudice, and swallow up the former 
ff. de noua. et C. eo. ti. .  Anglonomoph. 

2. The common Law is quiter contrary to the aforesaid assertion of the civil Law.  Our Law holdeth the contrary, and the reason is this, because it is an inconvenience in reason, that an especialty sealed and solempnlie delivered, should be avoyded by the bare agreement of the parties, which is but a mere matter in facto 
1. H. 7. 14. Dones case per Dauers. . Yet in some cases it is not inconvenient, that an obligation should be avoided by a matter in facto where there is a strong and peremptory operation in Law. As if a man be bound to a feme sole, and afterward he marrieth her: Or if a man be bound to a villain, and after he purchaseth the manor to which the villain is regardant, the marriage& the purchase maybe pleaded in avoidance of the especialty. So in an avoidance of a statute merchant it is a good plea to say that part of the land is purchased by the reconusee. So in a writ of annuity, it is a good plea to say, that he hath paid it in a foreign county. So if a man by deed grant a rent, if the grantee surrender the rent with the especialty, this is a good avoidance of the especialty 
1. H. 7. Dones case per Keble. . But where a man was bound to pay xx. nobles at a certain day, and if he failed, that then he would loose x. li. payable at the same day: an action of debt was brought for the x. pound, and it was allowed 
26. E. 3. 71. : for here there were two several bands, one of them consequent upon the other, but not abolishing the other. And if a defeasance vpon a statute merchant be, that the payment of the money should be made at bristol, and the conusee received it at an other place, this is a good discharge of the statute, for now the Law hath discharged it 
46. E. 3. 4. . But one matter of record may be avoided by an other: Therefore the case was 20. E. 3. in a writ of account the defendant said that the plaintiff by a deed, which he shewed forth did grant, that if the defendant did make a reconusance vpon statute merchant such a day at canterbury to the plaintiff, that the writ of account should be held as void: This was admitted by the Court to be a good agreement to avoid the writ of annuity, as soon as the statute is delivered to the plaintiff 
20. E. 3. account 79. .  Nomomath. 
I would know Codicgn. what your Law doth determine of impossible conditions, whether it doth utterly reject them or what force and effect it assigneth unto them.  Codicgn. 
impossibility, 
1. Three sorts of impossibilities at the civil Law.  our Law maketh three-fold: juris, facti, et naturae. juris, as when there is a repugnancy in the condition, so that the Law doth wholly frustrate, and disannul the condition, or else it is directly contrary to the Law: 
2. What impossibilitas iutu is at the civil Law.  As if a man should contract with a woman si prolem euitauerit, or si adulteram se praestiterit, the one of these being against the Law of nature, the other against the Law of God, both of them are by our Law made void 
C. fi. de condi. appo. . And indeed there is a repugnancy betwixt the contract and the condition, marriage being a thing instituted and ordained for the procreation of children, and the avoiding of fornication. 
3. What impossibilitas facti is at the civil Law.  Impossibilitas facti, is when there is great difficulty in the thing that is to be done, and it is not possible to bee easily done, howbeit it is not absolutely impossible to be done, this impossibility of the condition doth frustrate the act precedent: As if I say that Stichus my villain shall be free, if he will give a thousand pound for his freedom, this though it be not impossible, yet it is very difficult for a villain to perform,& because of the difficulty, the Law will imagine that I did but trifle by this form of enfranchisement, and so Stichus shall gain nothing by it 
L. cum haere.§. 1. ff. de sta. li. . So it is if a man being at york bee bound to pay to an other at London x. pound before sunset, this though it be not impossible in itself, because a Pegasus or poast-horse may help the matter, yet because it can not with any facility be pefourmed within so short time, our Law holdeth the condition to be void 
Insti. de verb. obli.§. loca. . Impossible by nature that is said to be, 
4. Impossibilitas naturae by the civil Law.  which is repugnant to natural reason, and contrary to the course of nature. As if I give a horse to one upon condition that he shall touch heaven with one of his fingers: or that he shall extinguish fire with oil: or that he shall build a village in the clouds 
joan. ad reg. Nemo. li. be reg. jur. .  Nomomath. 
These differences haue been well opened by Codicgnostes. Now I will request you Anglonomoph. to explain and illustrate them by cases.  Anglonomoph. 
I will particularly speak of them all: And first of Conditions against Law. 
5. Which be conditions against Law by the censure of the common Law.  If estates in land be made upon conditions contrary to Law, the estates be good, and the conditions void: But then the estates must not begin, neither take effect by force of the condition, neither depend vpon such conditions, as to the existence of them. But if a man seized of land do enfeoff a stranger upon condition, that if the feoffor do kill I. S. one of the queens subiectes, it shall be lawful for him to re-enter, the estate is good, and the condition void 
4. H. 7. 4. 2. H. 4. 9. . So it is if one enfeoff an other vpon condition, that if the feoffor do burn the houses of I. S. it shall bee lawful for him to re-enter 
Perk. Condic. 139. : for such conditions are impossible to bee good by Law. But if a lease for life be made, or a lease for yeares of land vpon condition, that if the lessee kill I. S. within such a day that then he shall haue and hold the land to him and to his heirs forever, notwithstanding that the lessee do kill I. S. within the day, yet his estate is not enlarged, because the condition was against law& the estate should haue been enlarged by the performance of the condition, but notwithstanding such condition, yet the lease is good, because that did not begin by the condition. But if an obligation be endorsed with a condition directly contrary to law, both the obligation,& the condition be voided 
8. E. 4. 13. 2. E. 4. 3. . And if a man be bound that he shall keep the obligee without damages, and do not show wherein such condition is void, because he may suffer damages for committing treason, murder, or other felony which things are against law, and it is also against law, to save him without damages for such things, so that the condition is voided, but the obligation is not voided, because such things are not expressly rehearsed within the condition, so that the condition is not directly contrary to law 
9. H. 4. Conditions 6. . And conditions which are repugnant in themselves are void in law: as if a feoffment or gift in tail be made, that the feoffee or donee may not take the profits: or vpon condition, that they shall make no waste: or vpon condition that the wife of the feoffee &c. shal not be endowed, or if a lease for life be made vpon condition that the lessee shall do no fealty, these estates be good, and the conditions void: or if an annuity be granted, proviso that it shal not charge the person of the grauntor, the grant is good the condition is void 
21. H. 30. 20. E. 4. 8. . But if a man seized of land in see lease the said land for yeares by indenture rendering rent, proviso that the lessor shall not distrain for the rent, this is a good proviso because the lessor may haue an action of debt 
5. H. 7. 7. . but land or rent may be given to a man in tail so that he may alien to the profits of his issue, and this is a good condition: for it is agreeable to law and the donor may as well give conditionally as simpliciter in the tail 
46. E. 3. 4. G. garrantie 18. . And 7. H. 6. it was held by all the Iustices in the exchequer chamber beside june, that if a man make a feoffment with warranty, proviso that the feoffee shall not vouch him and his heires, and that if he do, the warranty shall be void, this is a good proviso. But if the proviso had been that he should neither vouch nor rebutte, the proviso had been voided: for that had cut off all the force of the warranty 
7. H. 6. 44. . And if two grant custodiam parci de A. to I. capiendo feoda quae B. nuper parcarius cepit, proviso quòd scriptum non extendat ad onerandum vn des grauntors, this proviso was taken to be voided, because it restreyneth all the effect of the grant in regard of him, and if land bee given in tail the remainder in fee, vpon condition that if the donee, or his heires do alien in fee, that the donor or his heires may enter, the opinion of the court was that this was a good condition: for a man may make a condition in the negative of any thing which is prohibited by the law, as if he make a feoffment, proviso that the feoffee shall not not committe felony, or that he shall alien within age, or in mortmain: and a man may enfeoff A. and his wife vpon condition, that they shall enfeoff none other, for that were a discontinuance: otherwise it is that they shall not levy a fine, for that is contrary to their estate 
10. H. 7. 8. . So if a man make two executors, proviso that the one of them shall not administer, this is a voided proviso, because it restraineth all the authority given in the premises as to him, and the intent which agreeth not with lawe is to no purpose 
19. H. 8. 4. Dy. p Brud.& Englef. . And it hath been agreed, that if a man do limit an use in tail with a proviso, that if cesty queen use do such an act, his estate shall cease during his natural life, that this proviso is repugnant, and against lawe, for the estate can not be determined in part. And Iustice Walmsley said, that when an estate is given to one, it may bee defeated wholly by condition or limitation, but it cannot bee determined in parte to one, and given in parte to another: for that is repugnant to the rules of law, as if a man make a lease for life vpon condition that if the lessee pay not twenty pound, that another shal haue part of the land, this future limitation is void 
41. Eliza. Corbets case 86. b. come. . 
6 What conditions impossible in fact are at the common law.  And as to conditions impossible in fact, such conditions if they go to the defeasans of an estate, the estate notwithstanding remaineth good: but estates cannot bee enlarged by such a condition impossible: and if an obligation bee endorsed with a condition impossible, the obligation is good, and the condition is void. Therefore if a man seized of land do enfeoff a stranger vpon condition that if the feoffor go on foot from London to Stamford in a day, that then it shall bee lawful for him and his heires to re-enter, the condition is void, quia impossibile, the estate good 
14. H. 8. 32. : but if A. bee bound to B. that C. shall appear in the common place Octab. Trin. in an action of debt brought by the said B. against C. retournable at the same day, and C. appeareth the same day, and his appearance is not recorded, now the obligation is forfeited. But if in this case C. had dyed before the day of the return the obligation had been saved, because the condition became impossible by the act of God 
9. E. 4. 25. 15. H. 7. 2. 38. H. 6. 19. .  Nomomath 
Now I pray you show unto me whether conditions are to bee expounded strictly and according to the rigorous sense of the words are according to equity and the exigence of the case, so that the circumstances of a mans speech or actions, shal haue the regiment of conditions.  Codicgn. 

1. Conditions in the civil law are taken according to equity.  Conditions are in our lawe taken according to equity. For if I grant to one an annuity often pound yearly, quamdiu res meas gesserit, the law maketh this sense of these words that he shall haue ten pound yearly, si res meas gesserit together with a limitation 
l. pater§. fi. ff. de condi.& daemon. . So if I buy of one the fishes which are taken by him, though he haue not already taken any fishes, yet the words do imply a condition, that that the buyer shall haue them if any bee taken. So if I say, Acceptis centum solidis a Titio instituo eum haeredem, it is not meant that in regard of five pound received of Titius I do make him my heir or executor, but the words are conditionally meant: if the testator do receive 5. li. of Titius &c 
l. a testatore ff. de condi.& daemon. . So if I devise to one XX. li. pro docendo talem discipulum, this ( pro) doth signify a condition, because by common usage prius docendus est discipulus quàm soluendum salarium magistro 
l. nec semel. ff. qu. di. le. ce. . So if I do contract with a woman in this sort, I promise unto you A. that you shal be my wise donec terra ponatur supper oculos meos, these words are not generally to bee understood, for so the party may lay earth vpon his eyes, and slip the collar and break promise: but they must be understood according to common preferrment, that she shall be his wife until his carcase bee covered with earth, that is, until he be butted, so it is, if he should haue said, Donec oculi,& as mihi claudantur 
c. ex literis. 1. de spon. .  Angl. 
Our law many times taketh the words of a condition strictly to preserve an estate. 
2 The common law taketh conditions many times strictly.  A lease was made to one vpon condition, that the lessee shal not alien to A. the lessee alieneth to B. who alieneth to A. the condition is not broken: for a condition which goeth to defeat an estate must be taken strictly 
31. H. 8. 45. Dy. . And 28. H. 8. the case was thus: A lease for yeares was made by indenture, the lessee did covenant and grant, that if he his executors or assigns did alien, that it should be lawful to the lessor to re-enter: after he made his wife his executrix and dyed, the woman took an other husband which aliened. The first question was whether the words of the covenant abovesaid did make a condition. And if it were a condition, the 2. question was, whether there were any breach of condition in the case. Some held that there was no breach of condition, because the husband was possessed of the term by act of law,& is not an assignee no more then a tenant by the courtesy is, or the land of a villain. But brown and Shelley held that the husband was an assignee in law, and that the land was subject to the condition into whose hands soever it did come 
28. H. 8. 6. Dy. . But lately in Ridgeleys case the condition was extended by equity for the safeguard of the party. The case was thus: A man was bound to another in a c. l. that he should discharge the obligee& save him harmless of all suits& encumbrances against I. S. and after the said I. S. sued the obligee,& proceeded unto iudgement, wherefore the obligee brought an action of debt vpon the obligation, and the defendant pleaded non damnificatus est. And Beamond Sergeant did maintain the plea in his argument, because that he was not damnified in the eye of law until the goods or the land, or the person of the plaintiff were actually charged. For before that time he was onely chargeable, but not charged. Sergeant Harris argued to the contrary: for he said that he was chargeable to the execution of the party,& so not saved harmless,& two sorts of damages were held by Iustice Walmesley the one executory, the other executed executory, which a man may in future time sustain: Executed, as if the land or the person should bee in present execution. And if the disseisee make a release to the disseisor, and a stranger cancelleth the deed of release, the disseisor may haue an action of trespass against him: and yet the disseisor doth continue possession, and is not as yet actually damnified. And Iustices said, that the land of the party was in some sort charged, for none in such case would buy the land of the party, but onely under the value, because of the iudgement executory 
33. Eliz. Ridgeleys c. . But wee haue a rule in our law, that when a condition is to bee performed to a stranger it is to bee performed most strictly: and it the condition bee performed at an other place, this is not sufficient 
36. H. 6. 8. . And 21. H. 6. it is said that if a man be bound, that he or his feoffees of the mannor of W. shal grant to the obligee 20. s. rent for term of life, and he hath three feoffees, two of the feoffees cannot grant this rent 
21. H. 6. 19. . But 7. E. 4. it was affirmed in the kings bench, that if a man were bound to make one a sure sufficient and lawful estate in certain land by the aduise of I. S. if he make an estate according to the aduise of I. S. be it it sufficient or not, or lawful or not, he is excused of his bond: and a like matter was in the common place the same term, and they were of the same opinion 
7. E. 4. 13. .  Nomomath. 
I would gladly be satisfied in this, when a man maketh one his heir or executor, and if he refuse to perform any thing that is comprised in his will, then he willeth that I. S. shall bee his heir or executor, and shall perform his will, and shal seize his goods and enter into his lands post haereditatem aditam, though the heir or executor haue intermeddled with the will, and haue performed some things according to the intent of it: Now if the testator die, and the heir or executor haue performed some things of the will, but refuseth to perform other some, and hath seized the goods, and entered into the lands of the party deceased: Whether may I. S. enter vpon him for the condition broken and defeat his whole interest in the lands or goods: or shall he still retain part of the lands, and goods, because he hath performed part of the will?  Codicgn. 

1. There may be a substitution of one heir after an other, or of one executor after an other at the civil Law.  I. S. or the substitute of the testator is now by the will and breach of the the condition become directly the heir or executor to the testator: And all the authority or interest of the fomer heir or executor is utterly determined, 
2 The heir at the civil Law must s●ccedere in vniuersum ius defuncti.  frustrated, and defeated 
Insti. de vulga. substi.§. quo casu. : for the authority or interest of the heir or executor by our Law may not be apporcioned, but he must succedere in vniuersum ius defuncti 
ff. de verb. signif. l. nihil aliud est haereditas, et l. bonor. eo. Tit. . And there is an other substitution in our Law, which we call a reciprocal substitution, and it is thus: The testator saith, I do make S. and T. my sons within age my heires, and I substitute the one of them to the other, that is, if the one die, the other shall haue all, and the mother nothing at all 
Gazalup. verb. substitutio brevi loqua. .  Anglonomoph. 
I haue noted in your words Codign. two things, which haue no small coherence and agreement with matters of our Law. First in that by will according to your Law, an entry may be limited to a stranger. 2. In that ye hold that he which defeateth the estate of him that breaketh the condition shall defeat his whole estate, and shal entirely claim the possession. Which two assertions I shall severally prove by cases of Law beginning with the first: 
3. By Will according to the common Law an entry may be limited to a stranger.  A man seized in fee of lands devisable, did devise them to one for term of his life, and that he should be a Chapplein, and that he should chant for his soul all his life time, and that after his decease the tenements should remain to the Cominaltie of a certain village, to find a chappleine perpetual for the same tenements, and he died, and the devisee entred, and held the lands six yeares and was no chappleine, and the heir of the deuisour outed him, and he brought an assize: And it seemed to the Court that the limitation that he should be a chappleine was no condition, and that the heir could not enter, for then the remainder should be defeated, which may not be, because by the intent a perpetual chappleine ought to found 
29. Ass. pla. 17. : Whereby it appeareth that they in the remainder were to take advantage in this case of the breach of the thing that was to be done, and not the heir. So in Fitz james his case, the clause of entry was limited to him in the remainder for breach of the condition by the particular tenant: for it was held that the limitation might determine the estate, and that being determined, he in the remainder might enter 
13. et 14. Elizab. come 403. Newyses case. . Also 34. E. 3. the case was, that a man had issue a son and a daughter, and devised land devisable to one for life, vpon condition, that if the son should disturb the tenant for life, that the land should remain to the daughter, and the heires of her body, the father death, the son disturbeth the tenant for life, who death, the daughter brought a Formedon, and it was allowed 
34. E. 3. Formedon pla. ult. : 
4. The advantage of entry limited to a stranger is in the late reports doubted of.  But yet the advantage of entry by virtue of the limitation is not in other late reports so clear, but hath been greatly doubted of: Stubes being Cestuy queen use devised to his wife certain land during her life, ita quòd non faceret vastum, the remainder to his younger son in tail, and died, after the Statute of 27. of joining the possession to the use is made, the woman death, the question was who should enter for the condition broken, the heir, the feoffees, or he in the remainder 
3. Mar. 117. Dy. . And an other case was equally doubtful, Wilford was bound in an Obligation without day of payment limited, and devised his land to his executors upon condition, that if they did not pay the said sum according to the obligation, that the devise should be void, and that then A. should haue the land to him and to his heires upon condition that he paid the money, Wilford died, A. died, the executors are requested to pay the money, and they would not pay it, the question of the book left undecided, is whether the heireof A. may enter into the land, and pay the money 
3. Mar. 128. Dy. . In like maner land in Gauelkind was devised to the eldest son vpon condition, that he should pay 100. li. to the wife of the deuisour, he failed of the payment, it was questioned by Manwood, whether the younger son might enter into the moiety, as by an implied limitation 
15. Eliz. 317. Dy. . But touching such entries by force of some special limitation or condition, Mast. Frowike giveth a good rule 21. H. 7. that an estate of inheritance can not cease by virtue of a condition broken only, but there ought to be also an entry: But otherwise it is of a particular estate, and the reason is, because such an estate may be determined by word as by surrender: and by the same reason it may cease by the words of the condition 
21. H. 7.12. per Frowike. . 
5. That the entry for the condition broken, defeateth the whole estate.  Now that the whole estate of the feoffee or donee is defeated by the breach of the condition, and the entry of the party, may be proved by diverse authorities in our Law, and that there can be no fraction of the condition, 14. Elizab. all the Iustices agreed: And so was iudgement given in Winters case, that by the grant of the reversion of part of the lands, with which a condition runneth, the condition is wholly confounded, because it is a thing penal and entire, and may not be apportioned nor divided 
14. Elizab. 308. Dy. . And 33. of henry the eight, according to Mast. brooks report, it was held for Law, that if a man give land in tail, or lease it for life, rendering rent, with a condition for default of payment to re-enter: now if he lease part of the land to the donor, or lessor, or if the donor or lessor enter into part of the land, he cannot enter for rent behind after, but the condition is wholly suspended, because a condition cannot be apportioned or divided. Therefore some scruple may with good reason be made of the case 16. Elizab. in my Lord Dyers reports, A man leased land for yeares, upon condition that the lessee should not alien the land to any person without the assent of the lessor, nor any part of the land, the lessor giveth licence to alien part, and the lessee alieneth the residue without licence, it was adiudged that the lessor may enter notwithstanding the dispensation of the condition ex parte 
16. Elizab. 334. Dy. . howsoever 5. Edw. 6. be to the same purpose, that a man enfeoffed two upon condition to make back a lease for life to the feoffor, the remainder in fee to a stranger: the one of them only maketh estate accordingly. And by the opinion of many, this is good for a moiety by the dispensation of the party, who might take advantage of the condition by his acceptance of estate 
5. Ed. 6. 69. Dy. . For 23. Elizab. the case was such: A man was bound in an hundred pound to give to the obligee the moiety of all the fishes taken by his water-mille, he took twenty one fishes, and gave ten to the obligee, and an action of debt was brought vpon the obligation, and the plaintiff recovered, because he did not give unto him the moiety of the other fish. This was adiudged in the kings Bench. But now suppose that the condition doth extend only to some particular estates, whether shall the other estates depending bee totally defeated by the breach of the condition? And surely our Law is, that the breach of the condition shall defeat no estate, but only that whereunto it is annexed. For the case was 3. Mar. that a man devised land to his wife upon condition, that shee should bring up his eldest son, the remainder to the second son: The elder son entereth for the condition broken, he shall only defeat the estate of the wife. And if the tenant for life, and he in the remainder join in a feoffment upon condition, that if such an act be not done, that the tenant for life shall re-enter, this doth not defeat the entire estate of the feoffee 
3. Mar. 125. Dy . And if a gift of land be made in tail, the remainder to the right heires of the donee, upon condition that if he alien in fee, then the donor may enter, if the donor enter for the condition broken, the estate tail is only defeated 
11. H. 7. 6. 13. H. 7. 23. 10. H. 7.11. . So if a man lease land for life by deed indented, the remainder over in fee rendering a rent with clause of reentrie for non payment by the tenant for life, and to reteigne the land during his life: If he enter for the condition broken, he shall haue the land only during the life of the tenant for life 
29. Ass. pla. 17. .  Nomomath. 
I give ye great thankes for the unwearied continuance of your pains, and though I bee in questioning at a non-plus: yet I see your invention and memory are not graveled nor dried up, parched as it were with summers drought. I pray you therefore let us still converse together under one roof ( within my walls there is no Sinon, no Dauus, no Momus, but chast learning cabboned with frugal contentment,) that if God do still vouchsafe the Moone-diall of this darksome life, with the reflex of his intellectual illumined influence, this triple-wheeled clock may still be kept in motion, by the divine agility of his Law-fauouring spirit.   

A TABLE OF THE Sections or divisions of the principal points, matters, and questions, which are handled in every Dialogue.  

The divisions and principal contents of the first Dialogue of Prohibitions and Consultations.  
The 1. division. 1. THe original of tithes is enquired of. 2. The council of Constance is said to haue condemned Wicklife for holding tithes to bee pure alms.  
The 2. division. 1 The original of tithes is demonstrated to be by the law of God. 2. God his deputies for the receipt of tithes are set down. 3. The heathens which knew not God had great regard of of paying tithes. 4. Lucullus is specially commended for the paying of tithes. 5. Camillus is likewise commended for his diligence in procuring tenth to be payed. 6. The romans careful in paying first fruits.  
3. division. 1 Whether Parsons ought to haue no more living then tithes. 2. It is denied by the Canonist that they ought to haue no more living.  
4. division. 1 A lay man by the Canon-law may prescribe in paying a special portion in lieu of tithes. 2. The civil lawe agreeth thereunto. 3. By the common lawe a man may prescribe in paying a temporal recompense in lieu of tithe.  
5. division. 1 Two sorts of tithes are set down by the Canonist: some feudal, some ecclesiastical. 2. The Church onely holdeth conusaunce of the right of tithes by the Cannon lawe. 3. The king of france his edict touching tithes is set down. 4 That by the Canon law where the question of tithes is facti, and not juris, the examination thereof may belong to a lay judge. 5. Where the suite of tithes is betwixt clergy men though it bee merely possessorie, yet it be longeth to an ecclesiastical judge by the Canon law.  
6. division. 1 The nature of feudal tithes is opened by the Canonist. 2 Charles Martle is accused of Church-pillage. 3. The Canonist telleth a strange tale of Charles Martle. 4. It is thought of Nomomathes to bee but a fable. 5. One of the ancient statutes of England is compared with the afore said edict of the king of france. 6. The common law agreeth with the Canon in the attributing of the decision of the right of tithes to the spiritual judge. 7. Where one person may sue a spoliation against the other in the spiritual court. 8. The executors may bee sued in the spiritual court. 9. Of what trees tithes may bee demanded by the statute of 45. E. 3. 10. That the rent payed for tithes vpon a lease for yeares is a lay chattel.  
7. division. 1 A precept issueth with a monition under pain of excommunication for the due satisfaction of tithes.  
8. division. 8 The degrees which the Canon law observeth in punishing offences in the clergy. 2. Two sorts of excommunication set down by the Canonist. 3 The compulsory statutes of England for payment of tithes are mentioned by the barrister 4. Impropriate tithes at the common law are compared with feudal tithes.  
9. division. 1 The ordinary ex officio may city men to pay tithes.  
10. division. 1 Two sorts of heretics: formatus, and suspectus. 2. In what cause the wife and children of heretics shall enjoy their lands. 3. heretics by the civil law not punishable by fire. 4. The Canonist poasteth the punishment of heretics to the common law. 5. The professor of common law bandeth back again the punishment of heretics to the Canon law.  
11. division. 1 What things may bee termed Church-land by the civil law. 2. Of Churchyards the spiritual Court shall hold jurisdiction by the common lawe. 3. The right of glebe land is triable by the common law. 4. Lands devised not subject to the jurisdiction of the ecclesiastical Court 5. suits for chattels real must be in the spiritual court.  
12. division. 1 That ius patronatus by the Canon law is determinable in the ecclesiastical court: and that it passeth by the word ( ecclesia.) 2. The diuers significations of the word ecclesia at the common lawe. 3. The interest of the person, patron, and ordinary, in the Church is shewed. 4. What things do make a patron by the Canon law. 5. Ius patronatus is one of the proper objects of the common law. 6. That an advowson lieth in tenor.  
13. division. 1 Punishment pro laesione fidei concerning a temporal act, is not to be adiudged in the ecclesiastical Court. 2. perjury in an ecclesiastical court punishable in an eclesiastical court. 3. Lindwoods authority touching punishment pro laesione fidei in temporal matters at the ecclesiastical law is not admitted. 4 The barrister disproveth the general citations of bishops ad Sacramenta praestanda by the common lawe. 5. Nomomath encountereth him in this point. 6. The civil law agreeth with the Canon in matter of oaths.   

The divisions and principal contents of the second Dialogue of Actions vpon the Case.  
1. division. 1. THe reason is shewed wherefore actio iniuriarum hath so general a name at the civil law. 2. The barrister compareth an action vpon the case at the common law to D. Stephens his water.  
2. division. 1 An action vpon the case lieth against the keeper of a common inn if goods bee embeasiled. 2. If a stranger lodge with me by my consent, and do embeasil goods, the innkeeper shall not bee charged. 3. If my seruant embeasill my goods, the innkeeper shall not be charged. 4. By the civil lawe the innkeeper is to bee charged with action if his seruants steal goods. 5. If through the default of the master of a ship goods be stolen, the owner of the ship is to make recompense.  
3. division. 1 By the civil law it is not necessary, that there be mutual consideration in contracts. 2. Three sorts of contracts by the civil law. 3. What is a proper contract by the civil law. 4. What an improper contract is by the civil law. 5. What a most improper contract is by the civil law. 6. The common-law admitteth no contracts, but such as be proper.  
4. division. 1 That no fare ought to bee payed for them that die in a ship, if the master of the ship did assume to bring them safe to shore. 2. If a child be born in seafaring, nothing is to bee payed for that child. 3. The barrister putteth a case of carrying a horse safe and sound over Humber. 4. The Cannon law agreeth with the civil in cases of improper contracts.  
5. division 1 That by the common law want of skill is to be punished by an action vpon the case, if there be an assumpsit either implicative or expressed. 2. That by the civil law want of skill onely is punishable. 3. By the Canon law crassa& supina ignorantia non excusat.  
6. division. 1 circumvention dolo malo punishable by the civil law. 2. A difference at the civil law betwixt dolus malus and dolus bonus. 3. The same difference the Canon law observeth. 4. Dolus malus punishable at the common law by an action vpon the case, or a writ of deceit.  
7. division. 1 Contemptuous speeches are not punishable by the civil law. 2. Opprobrious speeches which proceed of malice are punished. 3 It is objected that the Grecians did tolerate sarcasmicall speeches against wicked men. 4. Aristophanes is condemned for his bitter detractions. 5. The deuisors& publishers of libels punishable by the civil law. 6. The cannon law is severe against such. 7. reproachful speeches punishable at the common lawe by an action vpon the case.   

The divisions and principal contents of the third Dialogue of debts.  
1 DEbt may grow by writing, or especialty. 2. An obligation may be by dead indented at the civil law. 3. What an instrumentum garrantigiae, is at the civil law. 4. Three sorts of bonds by the civil law. 5. Debt may grow by way of contract. 6. The canon law agreeth with the civil in matters of bonds,& debts. 7. Debts may grow by contract by the common law. 8. An action of debt lieth at the common lawe for the loan of money. 9. An action of debt lieth at the common law for a mere duty. 10. An obligation made after a contract dissolveth the contract by the common law. 11. A man may bee bound by dead indented by the common law. 12. A statute-bond is resembled to an instrument of warranty at the civil law. 13. A dead razed is not good at the common law. 14 The common law agreeth in substance with the civil law in the three sorts of bonds. 15. The common law dissenteth from the civil law in not making the redeliuerie of a bond an acquittance.  
2. division. 1 That by the civil law the executor succeedeth in vniuersum ius defuncti. 2. Insinuation of a will necessary by the civil law. 3. By the civil law the executor or administrator ought to make an inventory of the goods of the party deceased. 4. The power of the executor dependeth wholly vpon the will of the testator by the Common lawe. 5. According to the common lawe a devise is of no force until the death of the deuisor. 6. The common law agreeth with the civil in the insinuation of wills. 7. That an action of debt will lye against the ordinary. 8. The common law agreeth with the civil in administering goods comprised in the inventory according to the testament. 9. What may properly bee said to bee assets in the hands of the executors.  
3. division. 1 The rigorous lawe of the romans in their execution for debt. 2. The execution of the Romaines greatly to bee reproved, because it did deprive men of burial. 3. That the rigorous Law of execution for debt was afterward abrogated by the romans. 4. That by the civil Law execution lieth for debt vpon the goods of the party, and how far forth the word( goods) extendeth. 5. A fower-fold execution for debt at the common Law. 6. The execution of goods by Fieri facias is opened. 7. Execution by Elegit is opened. 8. Execution vpon statute merchant is opened. 9. Execution by Capias ad satisfaciendum is shewed.   

The divisions and principal contents of the fourth Dialogue, of accounts.  
1. division. 1. IN what case a man is accountable at the civil Law per actionem aestimatoriam. 2. The difference of a general and a special Bailie at the common Law. 3. What things belong to the charge of the Bailie of a Mannour. 4 That by the common Law if the Bailie be prejudicial to his Master, he is to make recompense.  
2. division. 1 By the civil Law the Bailie is discharged, if the Master intermeddle. 2. That by the common law as well as by the civil, he that is put in special trust to procure the profit of an other, is accountable.  
3. division. 1 account ought to be made to the Executors by the civil Law. 2. The same is warranted by the common Law. 3. That a writ of account by the Canon Law, will not lye against executors, unless it be in some special cases.  
4. division. 1 What authority may be assigned to a bailie by the civil Law. 2. The difference of an authority, a charge, and command by the civil Law. 3. The Canon Law is against the difference: So likewise is the common Law.  
5. division. 1 The difference betwixt a Bailie, a solicitor, an attorney and a deputy, is shewed out of the civil Law. 2. The difference holdeth not in the Canon Law. 3. The common Law according to the aforesaid difference more agreeth with the civil, then with the Canon Law. 4. That by the civil Law, contrary to the common law, there is no manner of interest in a deputy.  
6. division. 1 That the Bailie or attorney may not take half the land, for the purchasing or compassing of the other half. 2. That the like matter is forbidden by the Canon Law. 3. The common Law agreeth with them.  
7. division. 1 Two sorts of accountants by the civil Law. 2. Likewise by the Canon Law. 3. And also by the common Law.   

The divisions and principal contents of the fifth Dialogue, of Wast done in a mans ground.  
1. division. 1. OF what things Wast may be committed by the civil Law. 2. Cutting of Wood in Sylua caedua by the civil Law is no Wast. 3. The common Law agreeth with the civil, that Wast may be in the decay of an house. 4. A special covenant will bind the party to repair houses and walls battered down by violence vnresistable, by the common Law. 5. The tenant by the common Law, may cut Trees for the reparation of houses. 6. The common Law agreeth with the civil in the cutting of silua caedua. 7. The common Law agreeth with the civil in tolerating the lopping of Trees, which may be available for their groweth.  
2. division. 1 That both by the civil and common Law, where land is empeired by the inundation of water, this is wast.  
3. division. 1 That by the common Law, he that cometh to land by an other mans grant, ought to use it according to the grant. 2. The digging for coal or clay in the land demised is Wast by the common Law. 3. The suffering of the ground to become rushie, or weedy, by the common Law is Wast. 4. That the civil Law agreeth with the common Law, in suffering one to amend conduit-pypes in an other mans ground.  
3. division. 1 The punishment of Wast by the civil Law. 2. The punishment of Wast by the common law.   

The divisions and principal contents of the sixth Dialogue, of Parceners.  
1. division. 1. TWo sorts of Parceners: Parceners by the common Law, and Parceners by custom. 2. Who be Parceners by the common Law. 3. Who be Parceners by the custom. 4. That by the civil Law where 3. heires are instituted, they are not reputed as one heir. 5. That by the common Law Parceners are reputed as one heir, as to the discent of the land. 6. Parceners in regard of the partition are accepted as several persons.  
2. division. 1 The Statute of 31. H. 8. giveth a writ de Partitione facienda, as well to Iomtenants, and Tenants in common, as to parceners. 2. The three several actions against Parceners, Iointenants, and Tenants in common by the civil Law.  
3. division. 1 diverse kindes of partition at the common Law. First: A partition to haue a third part, or a 4. part. 2. A partition by way of release. 3. partition by the grant of a thing de novo. 4. partition by way of reservation. 5. partition by taking the third part, or the fourth part of the profits. 6. A difference in the civil Law, where a thing that hath partes cohaerentes is divided, and where a thing that hath partes distantes.   

The divisions and principal contents of the seventh Dialogue, of Conditions.  
1. division. 1. ( SI) doth not alway signify a condition in the civil Law. 2. Sometime it signifieth an uncertain cause. 3. Sometime it signifieth a certain cause. 4. Sometime an uncertain event. 5. Sometime a condition. 6. ( Si) doth signifieth an uncertain cause at the common Law. 7. ( Si) signifieth a certain cause at the common Law. 8. Likewise an uncertain event by the common Law. 9. Likewise a condition.  
2. division. 1 The word ( Nisi,) or unless, doth sometimes signify a condition at the civil Law. 2. How a modification or limitation of a grant is made. 3. A difference betwixt a limitation, and a condition at the common Law. 4. The common Law is more ample and large-handed then the civil Law in matters of limitation.  
3. division. 1 ( Rursus,) or the word( again) signifieth once again by the civil Law. 2. How far forth a word of restraint is to be extended by the common Law.  
4. division. 1 An agreement by word may defeat a matter in writing by the civil Law. 2. The common Law is quiter contrary to the aforesaid assertion of the uill Law.  
5. division. 1 Three sorts of impossibilities at the civil Law. 2. What impossibilitas juris is at the civil Law. 3. What impossibilit as facti is at the civil Law. 4. Impossibilitas naturae by the civil Law. 5. Which be conditions against Law by the censure of the Canon Law. 6. What conditions impossible in fact are at the common Law.  
6. division. 1 Conditions by the civil law are taken according to equity. 2. The common lawe taketh conditions many times strictly.  
7. division. 7 There may bee a substitution conditional of one heir after another, or one executor after an other at the civil law. 2. The heir at the civil law must succedere in vniuersum ius de functi. 3. By will according to the common law an entre may be limited to a stranger. 4. The advantage of entry limited to a stranger, is in the late reports doubted of. 5. That the entry for the condition broken defeateth the whole estate.    

Errata.  
faults. page.. Corrections. nations fol. 2. a. matrons. ( There want these words, fol. 4. a. There bee two sorts of tithes ecclesiastical and feudal.) stand fol. 6. b. sue. ( There want these words, fol. 10. a.( or Darius) linea 22. Tertorike 17. b. Teutonike. hard 38. a. poor. fate 59. b. foot. puerpercie 60. a. puerperie. land 69. b. Lord.  
FINIS.   

THE PANDECTES OF the law of Nations: containing several discourses of the questions, points, and matters of Law, wherein the Nations of the world do consent and accord.  
Giuing great light to the understanding and opening of the principal objects, questions, rules, and cases of the civil Law, and Common law of this realm of England.  
Compiled by WILLIAM FVLBECKE.  Opinionum commenta delet dies: Nationum iudicia confirmat. 
LONDON Imprinted by Thomas Wight. 1602.   

To the courteous Reader.  
CVrteous Reader, when Sulpitius returning out of Asia, sailed from Aegina to Megara, he began to cast his eye, and bend his contemplation to the regions round about him: behind him was Aegina, before him Megara, on the right hand Piraeus, on the left hand Corinth, which had been in ancient time very flourishing Cities, but were now ruinated, prostrated, and butted in dust: that wise roman whose eye did always aim at some convenient mark, and whose mind made perfect use of her selected object, when he saw these carcases of towns, considered his own estate, which was far more brittle. I likewise wandring in my thoughts through the paradise of learning, amongst many delightful apparitions espied four excellent laws: the first was the canon-law, to which for the gravity I bowed: the second the civil, which for the wisdom I admired: the third the Common law, to which I did my homage: the fourth the law of Nations, which I submissively reverenced, yet the hue and state of her seemed to bee much changed, and the iniquity of crabbed times had set the print of her metamorphosis upon her: Her other three sisters did condole with her, and deplore the injury of the times which did cause her crasines. I perceiving this, weighed mine own frailty, which in one and this very spring tide haue in myself known the force of seasons, and to the glory of God acknowledged it: I had no means of comfort wherewith to refresh this drooping lady, but onely with a plain English mantle to attire her, and recommend her unto thee. She will report many things unto thee of the renowned Assyrians, the valiant Persians, the spirit-guided Hebrewes, the prudent Grecians, the admirable romans, the noble hearted Carthaginians, the victorious Macedonians, the deliberatiue Turkes, the politic Italians, the chiualrous French, the most puissant & inuictis Romano mart Britannis, 
Tibul. 4. Elegi. 1.  she will manifest unto thee their judgements, their censures, their advises, and practices: 
Et quae mox imitere scias: nec desinet unquam  
Tecum Graia loqui, tecum Romana vetustas:  
Antiquos audito deuces: assuesse futurae  
Militiae: Latium retrò te confer in aeuum. 
Claudi. de quart. Consulat. Honor.    
I commit this book gentle reader to thy courtesy: it is the first to my knowledge that hath been written of this matter: if my pains be not correspondent to the dignity of the subject, the pardon lieth in the beneficence of thy courtesy: every one cannot be a Scipio, or a Laelius, to overtake every thing which they undertake: every one cannot say as one of them said: Sapientis non est dicere, non putaram. Appelles could but only describe the head and face of Venus: Achilles killed many trojans, could not surprise their city: and virgil before he cometh to the death and tomb of Aeneas, faileth, and slippeth into the description of the death and tomb of a Gnat. Perfection is a rare bird, which flieth from many, that with sweeting and breathing follow it. Yet some handle that, which they can not gripe, and their endeavour is not disliked. Some make a bold attempt, and fail of the victory, whose audacity is accounted a virtue: Some in not despairing of that they purposed, haue been thanked for their hope. For mine own part I crave no thankes, but good words, and good will, and thy favourable acceptance( friendly Reader) which being an effectual benefit may perfect all imperfections. Farewell in the Lord.  
March 30. Anno Domini 1602. Thine in all kind respect WILLIAM FVLBECK.   

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

Chap. 1. OF the differences of Times and seasons by the Law of Nations, fol. 1  
Chap. 2. That by the Law of Nations, Emperors, kings, and absolute monarchs, haue full power and authority to seize the lands and goods of their subiectes, condemned for heinous offences. fol. 9  
Chap. 3. That the worthiness of blood hath been principally respected of all Nations. fo. 14  
Chap. 4. That in making Title by prescription, and continuance of time immemoriall, all Nations haue consented. fol. 19  
Chap. 5. That by the consent of all Nations, consent principally maketh a lawful marriage. fol. 22  
Chap. 6. That by the practise of all Nations democracy hath been bet down, and monarchy established. fol. 28  
Chap. 7. Of the Law and Iustice of arms, of Leagues, of Embassages,& denouncing of war, of Truce, of Safeconduct, captives, Hostages, Stratagems, and conquests, according to the Law of Nations. fol. 33  
Chap. 8. That in the laws& Constitutions touching Cities, corporations, liberties, franchises, and immunities, and the good government and administration of them, all Nations haue agreed. fol. 52  
Chap. 9. That the distinguishing of demesnes, and the difference of the degrees and callings of men, is according to the Law of Nations. fol. 60  
Chap. 10. That in the Law of Tributes, Subsidies, and prerogatives royal, all Nations haue consented. fol. 68  
Chap. 11. That all Nations haue both secretelie, and by the course of their overt actions acknowledged and yielded to the Truth of the laws and commandements of the second Table of the Decalogue. fol. 75  
Chap. 12. That the rules of war and Law of Nations are not to be observed, and kept with pirates, Rebels, Robbers, Traytors, Reuoltes, and usurpers. fol. 81  
Chap. 13. That by the Law and practise of Nations, war is not to be maintained against Infidels onely, because they are Infidels: And that Princes in their realms may inflict punishment for strange worships. fol. 85.    


The first Chapter.  
Of the differences of times and seasons by the Law of Nations.  
AL Nations in putting difference betwixt times and seasons haue rather followed a popular and common observation, then the precise rules and principles of Astronomy, accounting it more convenient and requisite, that sithence all contracts and matters of intercourse do fall within the lists and precincts of time, that therefore the moments and measures of time should be publicly and familiarly known to popular conceit: In setting down the definition of Time, they agree in the substance and matter itself, though in words and terms they be somewhat dissonant. Aristotle a great Philosopher amongst the grecians defineth Time to be the measure of motion, according to priority and posterioritie, a short and subtle definition, but yet true& sound. Varro as great and famous amongst the romans defineth it to be interuallum mundi& motus, the space of the world and motion, a brief definition and very nimble, if it be nimbly understood: for by the world he meaneth the course of time, by motion the course of things. Others, as the Egyptians haue defined it a dimension perceived by the conversion of the heauens. Plato, who of these matters had in his travail conference with Arabians, Egyptians, and Chaldeans, defineth it to be a movable and changeable representation of eternity; 
plate. in Tim.  and truly and aptly doth he term it a changeable representation or image of eternity: for as Censorinus noteth, Time in regard of eternity, is but a winters day. 
Censo. c. 4. de di. na.  But though time be as much obseured in eternity, as a small penny is amongst the riches of Craesus, yet as that was part of his riches, so time must needs be a part of eternity. Cicero defineth time more vulgarly, to be a part of eternity with a certain difference, of a yearly, monthly, daily, and nightly distance, 
Cic. lib. de fin. 4.  so that Plato his definition hath relation to the cause of time; Ciceroes to the persons that make use of time. Philosophers haue left to posterity many subtle, deep, and learned discourses of time, but bidding their definitions and disputations farewell, I will examine and weigh the distinct partes of time with a popular balance, and according to common sense, taking that course to be most suitable to my profession. The partes of time according to the general division of Nations are a year, a month, a day, an hour, and a moment: for the Olympiads and Lustra, as being proper to the grecians and romans must be secluded from this Treatise, and Seculum as being a thing not usual in law, which now we handle must likewise be cassierd. Yet in speaking of time we may not forget to handle the circumstances of time as they be accommodated to the Law, and to the actions of men: As namely of a long time, a short time, a late time, an ancient time, a certain time, an uncertain time, a continual time, a convenient time, time past, time present, and time future. But first to speak of the year, Annus according to the etymology learnedly preached out by Varro, is nothing else but a circuit: for as the little circles are called annuli, rings; so the great circles or compasses of time are called Anni, yeares 
Var. lib. 5. de lingu. lat. . The year is a time, wherein the sun perfitteth his course, and that is accomplished in the space of three hundred, three scoore, and five dayes, and six hours almost: And this hath our Law well observed, as may appear by these verses: 
Ter centum, ter viginti, cum quinque diebus,  
Sex horas, neque plus integer annus habet 
18. Elizab. 345. Dyer. .  by which account( if you subtract the hours and half dayes) the quarter of the year will fall out as it is in our Law set down, to be ninety and one dayes; and the half year, a hundred eighty and two dayes, 
Ibidem.  which was almost fully signified by Ianus his image in Rome, in whose right hand was the number of three hundred, and in his left hand fifty and five. 
Macrob. lib. 1. stir. ca. 9.  Others haue made the same difference betwixt the year and month which the Merchants of some Countries make betwixt the ounce and the pound, delivering their conceit in this verse: Vnciaque in libra pars est, quae mensis in anno. And though it be a common received opinion, that the romans at the first, and a long time after the foundation of their city did account but ten months for the year, so that ovid quarrelleth with Romulus his Astronomy in this maner: 
ovid. lib. 1. fastor.  Scilicet arma magis quàm sydera Romule noras. Yet if the course& circumduction of their year be well observed, it will appear to haue contained the full space of twelve months, as may appear by Plinie 
Plin. lib. 2. ca. 9. , Macrobius 
Macrob. 1. Satur. ca. 12. et lib. 1. in some. Scip. c. 6. , and Plutarch 
Plut. in Num. . And this was likewise the year of other Nations. The romans did begin their vulgar year at the beginning of Winter, as appeareth by ovid: Bruma novi prima est veterisquè nouissima solis. Which course seemeth to bee agreeable to the course of nature, because then the sun beginneth to return unto us, and therefore wee may rightly derive the beginning of his circuit from thence: The year is divided into the Spring, Summer, harvest,& Winter. The Romaines did account the spring that space of time which was betwixt the Calends of March& the Calends of May, 
livy. lib. 34.  but the most common& currant entrance of the spring in the reputation of all the nations of the world, was when the plants or herbage of the earth began to wax green: and therefore it is rightly termed ver a virendo, as summer is called aeslas ab aestu, and then is said to begin when heat beginneth. 
Tacit. de mor. Germ.  The name of autumn nor the thing itself( as Tacitus reporteh) was not known to the germans in his time, and diuers countries haue made diuers limitations of the spring, and therefore if it bee agreed betwixt Titius and Seius that the beasts of Titius shal pasture in the grounds of Seius all the spring time, the time shall be limited according to the dimension of the spring-tide in that country where the bargain was made: and so it may be said of the other times, and seasons of the year, and if the occupation of a mans ground be granted to Titius, Seius, Caius, and Sempronius, so that Titius shall haue the occupation of the land in the spring time, Seius in summer, Caius in winter, Sempronius in harvest, if the interest of any of the same come in question, the judge had need be well advised of the certainty, and the peculiar difference of these times according to the customary observation of the country in which the grant was made, that he may suum cvique tribuere, and give no erroneous iudgement. Some make a bipartite division of the year into winter and summer without mentioning the spring, and harvest, defining the summer to begin at the equinoctial of the spring, and to end at the equinoctial of harvest: 
Vip. in l. 1.§ aestat. de ag. co. et aest.  so that summer and winter are divided by six months: then I put case that land is demised to one to haue and to hold during the space of the whole summer, whether may the lessee put in his beasts in the spring time, and it seemeth that the spring is to be excluded notwithstanding the division aforesaid, for the summer being name aestus ab aestu the spring can haue no part in the summer, for the spring is mean betwixt heat and cold, and therefore the said division seemeth to bee unproper, for proprie non dicitur quod non dicitur secundùm quod sonat; 
Baldus in l. ult. c. de haer. instit.  and in Swetia& other nations lying under the northern Poale this division can take no place: but if a man devise the dwelling of his house every summer to Sempronius, there it may seem that the spring shal not bee omitted, because our dwelling is divided into the summer& winter dwelling: but if a man devise his ground with all his summer instruments of husbandry, it seemeth that the spring is in this case to be excluded because there be other instruments of husbandry used in the summer time thē such as be used in the spring, winter, or harvest: But the imperial laws do extend summer from the kalends of April, to the kalends of October: the residue of the year they allot to winter; and this division I will not deny to be grounded vpon good reason if we respect the year in general not in particular; for in the spring time the sun mounting to the top of one of the lines of the Equinoctial circled he cometh by degrees nearer unto us and so maketh summer, but in harvest he transcendeth the other line of the Aequator and so being far removed from us causeth winter, and therefore not amiss by the cause of heat and could, are the times of heat and could distinguished.  
The month had his name of the moon which in the greek tongue is called mean: and the reason of the name is because the month is measured by the circumuolution of the moon, as Plato, 
plate. in Cratil.  Varro, Cicero, and others haue expounded it. 
Varro lib. 5. de lingua Lat. Cicer. lib. 2. de natur. dear.  Some do assign to the month twenty seven dayes, and eight hours: others twenty nine dayes and twelve hours: they do measure by the motion of the moon from point to point in the circled, that is, when it is revolved from one point to the same point: These do set down for the month that course of the moon in which it doth tend reciprocally to the sun, from which it newly digressed. The Athenians did observe the later order of the month, from whom though the romans did in circumstance agree, yet in substance they accorded; for their twelve months did not exceed that number of daies which doth consist of the twelve lunarie months; so that it is apparent that both these nations( as all other) follow the moon in this business: and for the more perfect observation of this course Sosigenes the egyptian persuaded and moved Caesar somewhat to alter the months, and by consequence the year, 
Plut. in vit. Caesar.  neither is this abhorrent from commen use; for let the case be that A. promiseth to B. that he will for some consideration pay unto B. the next month 20. li. and the assumpsit is made the eight day of March, whether may A. haue the space of the whole month of april to pay the money in, or he must needs pay it before the eight day of april next ensuing, accounting the month from the eight day of March: Surely by common preferrment he hath the whole month of april to pay it in: for the common people making more account of the calendar then of the kalends do set down for a month as they find in the calendar, not as curious wits may measure by the kalends or by like proportion. 
L. 4.§ Sti. si haered. de statut. Et stat. August. lib. 1. emend. c. 2.   
The name of day in latin dies, Varro deriveth a deo or dio, both which tend to one purpose. In this discourse my endeavour is rather to open the natures then the names of things. The day is thus defined by Plato in his book De definitionibus, if that book be his: Dies est ab ortibus ad occasus: so that how many risings& settings there are of the sun, so many dayes he maketh. Aristotle more exquisitely, Dies est motus Solis supra nostrum horizontem. 
Aristotle Topic. 5.  Two kinds of daies are most in use, the civil day and the natural day: the civil day it is therefore termed because diuers cities and countries made great diversities of daies, to which they did allot several compass of time. The Romains did deduce the day from midnight to midnight 
Plinie lib. 2. c. 77.  next following, placing the day as it were betwixt two nights, as in the beginning of the world night was before the day, and night followed it: but the day of the Vmbrians was from midday to midday: of the Athenians from Sun set to sunset: of the babylonians from the rise of sun, to sun rising: the natural day is that which consisteth of 24. hours being the space wherein the sun is rolled about by the motion of the whole body of the heaven from a certain point to the same point. The Astronomers make the beginning of this day at noon day or midday, as the Vmbrians; because to all inhabitants of nations continuing still in their regions the sun cometh always at that time to their Meridian, and to that circled which is carried through the tops and poales of the heaven: and every region hath his meridian of one sort though they haue diuers meridians in number& in particular, but the rising& falling of the sun is not in any region alway of one sort, because the points are changed, and we see the sun diversly to rise& fall: so that the Vmbrians may seem in this to haue done rightly, the Athenians and babylonians not rightly, the Romaines most rightely, who haue not as the other nations contrary to the order of nature, placed the night in the midst of the day, but haue made the night as the two extremes of the day,& therefore haue placed part of the night in the beginning of the day, and part in the end: of which consideration our law may seem to haue taken regard in that the forepart of the night it assigneth to the day going before,& the later part to the day following, which may evidently appear by the inditements of burglary: 
Crompt. I. P. Tit. indictamenta in fin. lib. fol. 224.  but the reason of the roman constitution is learnedly delivered by plutarch: 
Plut. in quaest. Roman. qu. 83.  at midnight( saith he) when the day of the Romains doth begin, the sun is in that region in the lowest point of the heaven, from which it beginneth to tend and to return to us and to ascend to our hemisphere: wherefore rightly doth the day begin then when the sun that is the cause of the day doth move toward us,& therefore this constitution of the romans must needs seem more probable then that of the Vmbrians, because the beginning of a thing is rather to bee referred to that time when the thing groweth to existence, then when it declineth and beginneth to leave his existence, so that the opinion seemeth to be good, 11. Elizab. in my Lord Dyer his reports; that whereas the case was that a lease was made to one of land the eight day of May to haue& to hold for twenty& one yeares thence next after ensuing,& the lessee entred the eight day, and his entry seemed lawful, and that he did not enter as a disseisor, for by the word ( thence) the first instance of the day in which the demise was made is to be intended, and not the next day ensuing the date: 
11. Eliz. 2●6. Dyer.  so that I cannot see vpon what reason in the accounting of the six months according to the statute of 27. H. 8. of enrolments the day of the date of the deed of bargain& sale shall not be accounted for any; 
5. Eliz. 22●. Dyer.  but the vulgar and common sort of men of all countries do account the day from light to darkness, which order the canonists do observe; 
Comment. ad l. Titius§ Luci. de lib.& post.  the night as Plato defineth it 
plate. in lib. de definite.  according to common admittance is nothing else but darkness: eventide is immediately after Sunset: twilight is a doubtful time equally consisting of light and darkness, which is always after eventide. For as betwixt knowledge, and ignorance there bee two means, namely doubting, and opinion, so betwixt day& night there is eventide& twilight. Ignorance is like to night, doubting like to twilight, opinion is like to eventide, because as opinion knoweth after a sort, but knoweth not truly& surely, because it is not grounded vpon certain reason: so eventide is after a sort day, but absolutely& fully it is not, because it is destitute,& bereft of the clear light of the sun: knowledge which relieth vpon the sound foundation of things known is answerable to the day, which is full of clear, and perfit light. Now as opinion is more like to ignorance then to knowledge; so euen-tide is more like to night, whereupon ensueth that twilight must needs bee more like unto night: but now suppose that a payment of money is assumed to be made within the compass of such a day, whether is it to be intended of the roman day, or some other civil day, or the natural day which is wholly in use amongst the Venetians: for in Venice the clock is  told four and twenty times for the day: and it is meet that this question should be decided by the custom of each country.  
Now come we to speak of hours, which to the Romaines were not in use during the space of three hundred yeares: therefore in their laws of the twelve tables, times are otherwise set down, namely, Sunne-rise noon, and Sunsett: the first, second, third, and fourth watch, plenum forum, full market, boum solutio, the time of the losing of the oxen from the plough, accensa lumina, candle light, and such like names. But to know the proper use of these hours that are fit to bee observed, which Paulus the civilian noteth: Cuiusque diei maior pars est horarum septem primarum diei, non supremarum: he meaneth not that there should be fourteen hours of the day, because it is manifest that there are but twelve, but his meaning is that the greatest parte of the day is spent in the first seven hours, if you account from the first hour to the seventh inclusive, as namely, from six a clock in the morning to twelve a clock: for then there will remain to the other parte of the day but five hours; And the former parte of the day is not onely the better for the number of hours, but because men in these hours are more apt for the dispatch of their business: Wherefore Nonius 
Noni. lib 9. de compendiosa doctrine.  vpon these words of virgil: Nunc adeo melior quoniam pars acta diei est commenteth thus. Our youth is the best part of our age, and so Maro wisely calleth the first part of the day the better part, as being the youth of the day: for if a man should number seven hours from a eleven of the cloak to five in the afternoon; yet these hours will not be so convenient for perfitting of business, as the seven abovesaid: and therfore he that demandeth six pence for travailing to a place on foot from eleven to five, to which an other hath gon for a groat from six to twelve, is not altogether unjust, because in the afternoon men be more unapt and more unable to travail.  
The last and least part of time( if it be any part of time) is a moment, which may better be imagined then described, for it is as swift as a man can imagine: and what is more swift then imagination? It hath received a definition somewhat obscure of Plato: Momentum est quod nullo prorsus in tempore est 
Pla. in Parmen. . It is taken by some to be punctum temporis: for as a mathematical point is that cuius nulla est pars, so a moment is a point of time cuius nulla est pars: yet Pliny seemeth to distinguish more rhetorically then truly punctum temporis from a moment when he saith: Quod momentum, aut immo quod temporis punctum, aut benefici● sterile, aut vacuum laud 
Plini. in Panegyr. , the existence of a moment cannot possibly be discerned, and therfore is not so much as the twinkling of an eye. The use of a moment is more fit for the operation of Law, then for the act of a man: for the Law doth operate without compass of time in an instant, but man never; for every act of man must haue space longer or shorter, according to the quality of the work: But the nature of such instants or moments which the Law doth imagine is such& so sudden, vt omnem respuant moram, as in the civil Law is well noted 
l. 23.§. ult. D. de adult. : And the reason is because in the operation of Law, that which it doth imagine to be done, is dicto citius, presently, and without delay done 
l. in suis. D. de lib. et post. : and therefore it is commonly said, it is done ipso jure, or it is said ipso jure, or ipso facto. But this course can not be observed in the actions of men, who can not do any thing without space of time, because their act is always continuate, and therefore must needs be done continuo tempore. And whereas the act of man is mixed with the act of Law: though in regard of the same thing the act of the Law be momentary, yet the act of man must needs bear some delay. Those things by the civil Law which are taken from enemies, do incontinent become his who doth self and take them 
l. 5.§. ult. de acquire. re. do. , The Law doth give them unto him presently, but yet there must be a time to take them, that the Law may give them. And so if when a Lease is made to A. of land for the term of the life of B, and A. death, C. entereth into the land, and enjoyeth it, as an occupant; the Law because it will not haue the freehold in suspense, doth imagine that it was presently and immediately in C. after the death of A, and that he entred presently: but if we respect this entry as the act of man, we must needs imagine that he had some time to enter into the land, and by his entry, which is an act consisting of motion, to gain the freehold.  
It remaineth now according to our purpose, that after this discourse of the partes of time, some thing should be spoken of the differences of time, which I will handle very briefly: for the matters precedent haue given some light thereunto, and they are not of themselves very obscure.  
And first to speak of the time which we call a continual time: that in the civil Law is sometime taken for as much as( during a mans life 
l. 1.§. pe. de off. pre. urb. l. 2. C. de his qui latr. ) and therfore he that hath purchased land for his life, is termed Perpetuarius 
Alci. lib. 1. parer. g. c. 37. : and in the common Law these words( a touts inours 
Littlet. lib. 1. cap. 1. fo. 1. ) make but an estate for life 
Littlet. lib. 1. cap. 1. fo. 1. , yet in proper sense it extendeth unto the last mark of time: A long or short time is distinguished either by the measure of the parts of time abovesaid, or by the measure of the Law, which is the discretion of the judge. The difference which is made of ancient time and of late time in the civil Law, is rather plain thē ponderous, Vetus accipietur quod non est nouum 
In l. 11. de vivi. leg. : And therefore the law of the twelve Tables they call their ancient Law, and that which followeth it the new Law 
l. 1. l. 3. D. de pet. haered. . But in this sense the Law of Nations should be the ancient Law, and all other human laws, new laws, but ancient by the interpretation of a good civilian is that, cuius initij memoria non extat 
l. 2. in prin. de ag. plu. ar. c.§. idem lab. aut si in agr. , and he expoundeth this to be: if there be none alive which knoweth when it had his beginning: Neither hath any heard of the beginning of the thing of those which did know it 
Idem Lab. aut cum quaeritur eo. . A certain time is that which hath a certain beginning and ending; An uncertain time is directly contrary: certain times are the year, the day, the month, &c. An uncertain time is signified by these words; before, after, in times past, some time, about such a time, &c. But there be diuers sorts of uncertain times: First, either that which is altogether uncertain, as when such a ship shall come out of Asia: for we know not whether it shall at any time come from thence, or when it shall come. Secondly, that is said to be uncertain, which though it be uncertain whether it shall be or no: yet if it be admitted to be, it is certain when it shall be: as if I grant unto one the corn that shall grow in such a ground, for I know not whether it shall grow or no: Or if I promise to be a godfather to that child which shall be born of Martha, within three daies after it be born, for I know not whether any shall be born: Or if I promise to pay such a sum of money when Titius shall be of full age: here it is well known when Titius shall be of full age, but it is uncertain whether he shall live till he come to full age. 3. that is uncertain, which though it be certain that it shall be, yet it is uncertain when it shall be; as the hour of death. The present time is so small and unsensible, that it is almost of no continuance, and it is but the conjoining of that time which is past to that which is to come; Time past is that which wanteth his beginning; And time future is that which never had ending. A convenient time is after diuers sorts: First, either it is convenient for some, and not for all; as when some causes are to be heard, and not other some: Secondly, or profitable for all, but not always; as the terms whilst there are no dayes of vacation, dies non iuridici: Thirdly, or it is profitable for all, and always; as the assizes.   

The second Chapter.  
That by the Law of Nations, Emperors, kings, and absolute monarchs, haue full power and authority to seize the lands and Goods of their subiects, condemned for heinous offences.  
IF any man be so straitly minded, that he thinketh this prerogative to be too large and ample for an absolute monarch: let him think there withall that himself is so base minded, that he cannot sufficiently judge of the great worth and demerit of so high an estate: for the name of a king importeth so great pains and charge, that a kingdom seemeth not to be a sufficient or counteruailable recompense: For Themistocles his choice must either be very reasonable, or exceeding desperate, when he accounted it better to sink into his grave, then to ascend to a throan: wherefore not doubting of the great charge of it, let us examine the continual custom of Nations in the executing of this power. S. Lewis the French king, famous in that nation for integrity,& iustice, doubted not by public iudgement to prescribe the farms, lordships, and lands of Peter the earl of Dreux: And so were the goods and possessions of Charles Duke of bourbon seized and forfeited 
body. lib. 5. de repub. c. 3. . And they haue a Law in Scotland, that the goods of persons condemned shall go wholly to the exchequer without any deduction or reprisal to wife, creditor, or children. The romans did allot their fines, penalties, and forfeitures to the sacrifice, and service of their Goddes, and therefore they were called Sacramenta 
Festus in verb. sacrament. . But the Athenians did give onely the tenth part of the goods that were forfeited to religious uses: as may appear by the record of the condemnation of Archiptolemus and Antiphon, which runneth in these terms, Archiptolemus& Antiphon vndecim-uiris capitalibus ad extremum supplicium traditi: bona eorum publicata, decima Mineruae data, domus eorum solo aequatae: And although justinian the Emperour did vpon some scrupulous conceit abrogate the Law of giuing the goods of condemned persons to the public treasury, and did therefore establish a Law, that they should remain to their children 
Authent. bona damnato. de bonis damnator. C. . Yet diuers held this Law to be new,& different from the course of ancient Law-makers: for even in the most ancient times in case of high Treason in all common weals of the world, such forfeitures haue been admitted: for it was thought that the goods of such persons condemned, were either by fraud, violence, or other corrupt courses wrested from the common weal: and therefore were to be restored to it again: or else because such persons having offended against the common weal should satisfy it that way:& therfore were such goods conveyed away by Law from wife and children, because for the most part they were unjustly heaped together for the aduancement of wife and children. But such prerogatives haue been in ancient time so firmly annexed to the sceptre and estate royal, that by the civil Law such things which are properly called iura maiestatis, by the common Law iura regalia, cannot be severed from the regal dignity,& therfore Baldus calleth them g sacra sacrorum, and Cynus, indiuidua h, the inseparable incidents of a kingdom: And by the civil Law such things can not be severed from the princely Diadem, neither can any man prescribe in them 
Bald. con. 174. lib. 3. et con. 193. co. . And so it is said in our Law, that where the King hath any commodity in the right of his crown; as if he haue a Mine containing in it gold or silver, by the grant of the land in which it is contained, the Mine doth not pass, because he hath that by his prerogative royal, and they be two several things and of diuers degrees 
10. Elizab. come. information pure Mines 310. per Wray.  And whereas the priory of Wenlocke was one of the ancient Priories which were of the foundation of the crown, and the King granted the said priory in ample words: yet the King onely did meddle with the Mines of gold and silver that were in it 
Fitz. Na. br. Corrod. 232. : And by the grant omnium& singularum Minerarum, these Mines shall not pass 
come. Inf. pure Mines ib. . And though the king grant to one the return of all maner of writtes, yet he shall not haue the return of the summons of the exchequer, because that toucheth the crown, and is not betwixt party and party 
22. E. 3. lib. Assis. pla. 49. . Neither by the Law of England can any man prescribe in such things: For it is said 1. H. 7. that no franchise may prescribe to hold plea of Treason; and whether the king may grant any such liberty or no, the Iustices were in great doubt 
1. H. 7. 23. . But 46. E. 3. it was held by Kniuet Iustice, that a man might claim a franchise of Infangtheefe, and Outfangtheefe, and waif and stray by prescription; but he cannot haue the chattels of fugitives or Felons, unless it be by especial grant, because that it belongeth unto the King as to his crown, and therefore can not pass from him, but by special grant: 
46. E. 3. 16.  and 21. H. 6. this diversity is taken: such things as accrue to the king by matter of record, as the fines, issues, and amerciaments of courts do not lye in prescription: but in such things as belong to the crown,& the title of thē doth not grow by matter of record, as waif, stray, wreck of the sea, treasure found, and the like a man may prescribe in, 
21. H. 6. prescript. 44.  but as these are special prerogatives which are granted to a prince so they are granted for special causes: by which princes must bee directed not by their own voluntary conceits or unsatiable desires, least it happen that magna imperia, be magna latrocinia: for good gouernours will not imitate the lewd monarchs of nations, as Caligula, Nero, Caracalla, Carinus, roman Emperours, nor Seleucus, nor Alexander the great, or rather the proud, which did claim a general and absolute power indefinite& illimitate over all men, over all things, without difference or exception: which did think that they might give laws to others and not to bee bound by any; which pretended that there was but one law for all common weals, and that was to obey every thing which the king commanded, and that that was just in regard of the subiectes which was profitable to their ruler, like to that prince of pirates and robbers in Heliodorus, 
Heliod. lib. 1. Aethiop. histor.  Si imperij lege vtendum fuisset, prorsus mihi velle suffecisset: Like to that saying of Iulius Caesar the usurper. Sylla literas nescijt qui dictaturam deposuit: mecum homines consideratius loqui debent, ac pro legibus habere quae dico: 
Sueton in Caesar.  like to that of julianus though spiced with some sprinkle of mildness: Polliceor absque omni praerogatiua principum, qui quod dixerint, vel sensuerint pro potestate authoritatis justum esse existimant: 
Ammian marcel. lib. 23.  or like to that sinister clause of the Popes insolent vanity ( de plenitudine potestatis,) the last of which words Baldus playing withall, putteth in stead of it tempestatis: 
Alciat. reg. 3. praes. 8. et ad L. 2. C. de in ius voc.  yet I will easily grant, that if any prince do by sword and conquest subdue any country; as the whole country is gained and possessed by this exploit: so all the lands and goods of every inhabitant in that country are his, until he did give them or restore them unto the former owners: As by the lawe of this realm of England, if a man be attainted of felony, and the queen pardoneth him all felonies, and executions, and doth likewise pardon and release all forfeitures of lands and tenements, and of goods and chattels, this pardon and this release cannot serve but onely for the life of the party, if the office be found, for then the land is the queens by matter of record, and therefore there must bee express words of restitution: and as to the goods, the queen is entitled to them without office: 
29. H. 8. Br. chart. de pared. 52.  so if it be found by office that I. N. the queens tenant was seized of certain lands, and dyed seized, and that W. his heir intruded, and after by act of parliament the queen pardoneth all intrusions, in this case the entry and offence are pardonned and released, but not the issues, and profits: for the queen was before entitled by matter of record 
33. H. 8. Br. charters de par. 71. intrusi. 21. Issues ret. 22.  for when any thing cometh to princely possession which did before belong to any inferior person, it cannot bee restored to him without actual donation. And Xenophon saith, that it hath been a perpetual lawe amongst all men, that all things taken by war, whether they bee money, goods, or men, do belong to them which took them: 
Xenoph. lib. 7. Cyropae.  and Thucydides affirmeth the same to bee a common lawe to all nations: 
Thucyd. l. 3  howbeit the romans rather by mercy then rigor of lawe were onely content with the tenth parte of the goods, and did remit the residue to the conquered persons. 
Appian. lib. de bel. civil. 2.  And it hath always been accounted the property of barbarous nations to haue no lawe written nor ratified by common consent, neither touching these rights nor prerogatives, nor other matters, but onely the voluntary conceit of the monarch, as livy hath judiciously observed: 
livi. lib. 37.  But Aristotle maketh one exception from the rule, and that is of the Spartan Kings, whom he affirmeth to haue directed their actions by prescript of lawe: 
Ar. 3. polit.  and Diodorus Siculus saith, that the egyptian kings did first begin to rule by a settled and determinate lawe, and that all other nations were governed by the changeable will of their sovereign, 
Diodor. Sicul. lib. 2.  and the romans did after refine themselves as appeareth by Plinie speaking to trajan; Te legibus subiecisti, legibus Caesar, quas nemo principi scripsit: And presently after he saith, Quod ego nunc primum audio, nunc primum dico: non est princeps supra leges, said leges supra principem. 
Plin. in Panegyr.  But to open and declare further the sovereign and ample authority of monarchs over the lands and goods of their subiects, though it haue been in ancient times held and affirmed by the civil law, that such things as are parcel of the law of nations could not be taken away by the prince from his subiectes: and therefore they might not be deprived of their demesnes or inheritance of lands, or of the property of their goods and chattels which they enjoy by the law of nations: 
§ said natural. instit. de iu. na.  as I haue sufficiently shewed in my Direction to the study of the Law, Cap. 7.& 8. but onely of such things as belong to them by the civil law: yet by the opinion of the later civilians this is held to bee no law, but that the Princes haue for special causes free disposal of their lands and goods as Decius fully proveth 
Deci. Cons. 209. in casu 2. 69. consultus. 390. quoniam 519. visis. 557. accurate. , and this later opinion seemeth to bee more reasonable, and more consonant to the truth: for first though the distinction of demesnes and the property of goods be parcel of the law of nations, yet the means whereby they are acquired are prescribed by the civil and common lawe: so that they are not altogether parcel of the law of nations: 
ball.& Ia. in l. omnes. C. Si con. ius vel vtilitat. pub.  again the right of demesne and property is not alike in all nations, 
Herodot. li. 4. Strab. lib. 11. Arist. lib. 2. polit. Tacit. de mor. Germa. Caes. lib. 4.& 6. de bel. Gal.  but is moderated, and ordered by the laws of particular common weals; But suppose that the king will take away from any of his subiectes the right and power of using and pursuing an action for the recovery of their lands, goods, chattels, or damages: Surely this is permitted by no law, but by the civil 
l. 2. C. de prec. imp. off.  and common law expressly prohibited: for the king cannot grant to any person that he shal not be impleaded or sued, in this or that action:& though his highnesse may grant that I. S. for trespasses or any thing done wrongfully in his mannor of Dale shal hold cognisance of pleas within the same mannor, yet in this case he doth not take away the action of the party, but doth onely restrain him to bring his action in a certain place: 
8. H. 6. 19.  But here it may be objected that a king or absolute monarch may without cause seize the lands& goods of his subiects: 
li. ult. C. de consul.  for it is plain that a king hath more power over his subiectes, then the father hath over his children: but by the civil law the father may take away the goods of his children when he will: 
l. placet. 79. D. de acquire. haere. l. acquirit. 10. D. de acquire. re. do.  therefore the king may take away &c. To this reason grounded vpon the civil lawe, I do thus answer, that by the law of nations kings haue not such an indefinite power over their subiects as fathers by the civil law haue over their children: for by the law of nations kings were chosen and ordained at the first for the safeguard and protection of the lands goods& persons of their subiects, so that they may not without cause bereave them of their goods, and therefore there is a good rule in the civil law that in privatorum agris, nihil ne publico quidem consilio cum ipsorum iniuria capi ius est. 
l. Venditor. 13. D. de come. praed.  And to that purpose Cicero speaketh well: Videndum erit ei quirempub. administrabit, vt suum quis queen teneat, neque de bonis privatorum publice diminutio fiat: and for this cause God did appoint a certain portion of land to every tribe of the Israelites: 
Deutero. 17  and by reason of a private title Naboth would not sell, or change his vineyard with ahab 
1. Reg. 21.  and in the inauguration of the king of hungary this was exacted of him by oath: vt iura regni integra conseruaret: 
C. in tellect. 33. ex tr. de iureiuran.  And in the civil law it is said, Qui pleno jure Dominus est, alie nandi, dissipandi disperdendi, ius habet: 
l. 7. cod. de relic. l. said etsi l. 25.§. consuluit D. de haered. petit.  And again, suae quisque rei arbiter, ac moderator est. 
l. in remandat. 21. C. demand.  So that it is evident that without cause, the property which subiectes haue in goods and lands may not bee altered by their prince. And therefore wittily saith D. gentiles, that they which argue to the contrary do not dispute, or draw their arguments ex cast is fontibus Philosophiae, aut ex ipsis iurisprudentiae riuis, said e scholis sophistarum: hallucinati sunt Theologi, adulati sunt iurisconsulti, qui omnia principibus licere asceuerarunt: 
Albe ric. gentle. Dec. 1. disput. 2. disput.  I would not be mistaken in this Chapter, sithence I hold an indifferent course betwixt prince and people: neither consenting to them which say, that princes may seize the lands and goods of their subiects without cause, nor to them which think that they may not seyse their lands and goods for any cause: but my resolution is, and the sum of this discourse is, if it bee diligently and impartially observed, that princes may lawfully claim, and take to their own use the lands and goods of their subiects for the causes abovesaid, and prescribed by lawe, and not otherwise: and by this word( Princes) I mean none but absolute monarchs: for the law of nations alloweth this prerogative to none other. And therfore I do greatly like of that saying of Hipocrates urged in the civil law: Lex est rerum omnium domina, quia scilicet& civitatis cuiusque& civium singulorum patrimonium constituit, definite, tuetur: Lex sola dominium rerum confert: sola dominij acquirendi modos constituit, citra quos acquiri nullius rei dominium potest. 
§. 2. de bon. posses.& apud Vlpi eo. Tit. reg. 19.  This foundation being laid, I hope my assertion may firmly stand that the law of England in giuing to the queen the lands and goods of subiects for some peculiar causes is just and reasonable: as when a true man is pursued as a fellow, and he flieth, and waiueth his own goods, these are forfeited as if they had been goods stolen. 
29. E. 3. 29. 37. H. 8. Br. Estray. 9. Stam. fol. 186. a.  And so if a man be outlawed of felony or treason, he shall forfeit all the lands& tenements which he had at the time of the felony or treason committed, or at any time after, as well as if he had been attainted by verdict: 
28. H. 6. 5.  howsoever M. Parkins holdeth opinion that attainder by outlawry shall haue relation to the exigent, as to the lands and tenements: so that a feoffment of land, or a grant of rent made before the exigent awarded by him that is attainted in such manner is good in his conceit: but he saith that as to an attainder by verdict, that it shal haue relation to the time of the felony done, according to the supposal of the inditement, as to lands and tenements: and so it is of an attainder by confession: 
Parkins grants. 6.  But M. Stamford being better advised saith, that as soon as any of the offences aforesaid are committed, he is restrained to make a gift or any other alienation of his land: and if he do, it shall presently bee made voided by his attainder, and it is not material whether the attainder be by outlawry or verdict, and this is agreeable to the book of 38. E. 3. fol. 37. 
Stamford fol. lib. 3. 31. a.  but he saith that the forfeiture of the goods by attainder by outlawry shall haue relation to the exigent, and forfeiture by attainder by verdict shall haue relation to the verdict. 
Stamford. 192.    

The third Chapter.  
That the worthiness of blood hath been principally respected of all nations.  
THe division of inheritances in stirpes,& in capita, hath made great division in diverse common weals, yet in all of them the worthiness of blood hath been regarded: By the roman law the son of the elder son who is dead shall equally succeed in the inheritance with the second son. And whereas in germany there was a contention betwixt the vncles and nephews of the right of inheritances, and for the deciding of it, the Emperour Otto the first, did cause a Parliament or general assembly of estates to be held for the disceptation, and deciding of this doubt: When after much business and argument, no determination could be had, the matter was ordained to be tried by single combat, an usual thing in these daies( for it was about the year of the incarnation of our saviour nine hundred forty and two 
Witichiudus lib. 2. histor. 2. Sigebert in chronic. Ottonis 1. ) and a formal trial referred to God, when mans wit was at a nonplus: But in this case, that part overcame which did account the sons of elder sons as sons; and therefore it was ratified by Law, that they should equally divide the inheritance with their vncles. amongst other nations diuers contentions haue risen about this matter: for when Eunomus the King of the Lacedemonians had two sons, Polydectes the elder, and Lycurgus the younger, and Polydectes deceased leaving no son living at the time of his death, and therefore Eunomus being dead, the sceptre of that kingdom came to the hands of Lycurgus: afterward when Polydectes his widow had brought forth a son, Lycurgus did willingly, and readily yield to him the sceptre 
Plut. in vit. Lycurg. justin. lib. hist. 3. : Which act of Lycurgus agreeth fully with our Law, whereby it is ruled, that if a man haue a son, and a daughter, and the son purchaseth land, and dieth, and the daughter entereth, and after the father begetteth an other son of the same wife, this son shall haue the land 
19. H. 6. 6. . So if a man enfeoff an other vpon condition, and the condition is broken, and the feoffor dieth without issue his wife priuement enseint, and the brother of the feoffor entereth for the condition broken, and after a son is born, he shall avoid the possession of his uncle,& may lawfully claim the inheritance 
9. H. 7. 25. . And it is likewise said, that after two, or more descents, the heir afterward born claiming by discent may enter into the land; but he shall not haue a writ of account for the mesne profits, nor any writ of Wast 
9. H. 6. 23. . But in cases of purchase the Law taketh a difference, and therfore it is said 5. E. 4. by Billing, that if a man devise land to a man, and his heir, and the devisee death having issue a daughter, his wife being priuement enseint with a son, who is afterward born, the daughter shal retain the land in perpetuum, which the Court granted 
5. E. 4. 6. . And 9. H. 6. it is said, that if a remainder cannot vest in any at the time when it falleth, it shall not vest in him that is born afterward, where an other hath entred before 
9. H. 6. 23. 3. Eliz. 190. pla. 18. . But to return to the examination of this matter by history, Pausanias reporteth that Cleomenes the king of the lacedæmonians being dead, a controversy sprung betwixt Areus the son of Acoratus the eldest son of Cleomenes, who died before his father, and Cleonymus the second son, the uncle of Areus, but by Senate-decree the kingdom was adiudged to Areus 
Pausan. lib. 3. . And Polydore virgil reporteth that king Edward the third being deceased, Richard the second, the son of his eldest son obtained the kingdom, and was preferred before John, edmond, and Thomas, the sons of king Edward 
Polyd. virg. in hist. reg. Angl. . Paulus Aemilius an excellent writer of the matters of france likewise telleth, that when Hanno had invaded the kingdom, and expulsed Erkenbalde the son of his elder brother, this matter was brought into question: in the end Hanno was constrained to lay aside arms, and to stand to the iudgement of the peers, who adiudged that Erkenbalde should haue the same power and interest in the kingdom, which his father might haue had if he had survived 
Paul. Aemil. in Tit. Carol. Crass. . Neither will I deny that examples may be produced on the contrary part: as namely the contention betwixt Artemenes and Xerxes for the kingdom of Persia: for it is delivered by Herodotus 
Herodot. lib. 7. , justin 
justinus lib. 11. , Plutarch 
Plut. in Artaxerx. , that a controversy being raised in the kingdom of Persia betwixt Artabazanes( as Herodotus) Artemenes, as( justinus calleth him) and Xerxes the sons of Darius Hystaspes about the succession in the monarchy of Persia, Demaratus was at the same time there, who was driven and expulsed out of the kingdom of Sparta, and he signified unto them, that the Law and custom of the spartans was, that the son that was born after the father had attained to the kingdom, was to be preferred before the elder brother who was born before; for which cause the kingdom was adiudged to Xerxes the younger son, who was born of Darius being king, whereas the other was begotten of him being a private man: But this iudgement was after reversed; For when after the death of Darius, the same controversy was handled betwixt Arsica begotten of Darius being a private man, and Cyrus being born of him after his advancement to the kingdom, and Parysatis the mother did in the behalf of Cyrus urge and revive the controversy betwixt Xerxes, and his brother, the Persians notwithstanding the former iudgement, did now adjudge the kingdom to Arsica 
Plut. in vit. Artaxerx. . Neither am I moved though in the contention for the dukedom of Millayne, betwixt Lodwike and Galeatius bretheren, whereof the one was born before his father obtained the dukedom, the other after, the contrary were determined for Law 
Guicciard. lib. 1. histor. : For by the most examples of every common weal, and by the continual practise of nations most civil( which onely course I observe in this discourse) the right of Primogeniture, or elder-brothership is fenced, supported, and defended against this last decree of the Millanasses, and that first of the Persians: For Herod the king of the Iewes, did prefer in the succession of his kingdom Antipater, who was born before he was king, before Alexander and Aristobulus begotten after he was king 
joseph. lib. antiquit. 16. . And many yeares after in hungary, Bela their king being dead, Geysa being born when he was a private man was invested with the crown 
Fl. Blondus decade. 2. lib. 6. Micha. Ritius lib. de regi. hunger. 2. : and before that Otto the first could be settled in the Empire of Rome, his brother Henry made a quarrel to it, because he was born when his father was Emperor: But the matter descending to arms, and battle, victory did adjudge the Empire to Otto 
Sigebert. in Chron. : Wherefore two or more contrary examples are not in this case to be regarded; As that of Genzericus the king of the vandals, who made his testament in this form, or rather this Law in form of his testament, Si Rex moritur, qui ei genere proximus, et natu maximus erit regni haeres esto: for Procopius noteth his great age when he made this Law, and it may be that others will note him for his dotage if he did amiss, for his discretion, if he did it to prevent a danger 
Procop. lib. de bel. Vandal. . So when Charles the king of Sicely died he had two sons, Charles martel, and Robert: Martellus died living his father, but leaving a son, whereupon the Lawyers had plentiful matter of disputation offered unto them, whether the sons son should be preferred before the uncle in the possession of his grandfather: but by the Popes means, Robert obtained the kingdom: But the Emperour Fredericke reversed this sentence, and the Pope canceled his rescript r. But D. Bartolus giveth this reason of the Popes doings, because the kingdom of Sicilia was one of the fees of the Church of Rome, so that it did not belong to Robert by any lawful succession, but by the grant and inuestiture of the Lord of the fee 
Barto. in Arth. post fratr. C. de legit. hered. . Neither is it material that the nomads, Barbarians, did prefer the younger brethren before the children of the elder brethren, as Strabo reporteth: {αβγδ}. 
Strabo lib. 16.  yet I will grant that in the succession of regal dignities, the worthiness of blood is less to bee respected, then in the succession of common inheritances, because in that case the commodity of the subiectes, and the ability of them that are to succeed is politikelie to bee respected: And therefore diuers civilians do with united consent pronounce that the good estate of the kingdom and subiectes, the profit, peace, and safety of the same, is more to be headed quàm sanguinis series, the course of blood 
luke. de Pen. in 5. nepot. C. qui num. lib. 10. et in l. 1. C. de lyro. lib. 12. Bald. in c. 1. de feud. March. . And Roboam preferred Abias his younger son, before his elder brethren in the succession of his kingdom 
.2 paralip. 11 . And Salomon the younger brother 
2. Reg. 1.  was preferred before his elder brethren: But this must be done warily, and by the warrant of a good conscience; otherwise it can neither please God, nor profit man, least a king do by his choice prejudice his subiectes; as Micipsa did by the adoption of Iugurtha 
sallust. in bel. jugurth. . But the reasons are many and forcible, wherefore the worthiness of blood shall in the course and conveyance of inheritances bee principally respected. First, Ius quod personae inest per modum substantiae, est ab ea inseparabile, et in nullo alio subiecto potest verificari 
Arg. l. for did. C. de excus. mun. lib. 10. . But ius primogeniturae is in the eldest son, or in his issue per modum substantiae: therefore it is inseparable from him, and cannot extend to any other. Secondly, the authority of ulpian proveth it, affirming that he is a patritian, who is born before his father was made a Senator, as well as he, who is born after that he is possessed of the Senatorie calling 
l. Senator. S. D. de Senat. . Thirdly, it is apparent by many places in the feudal Law, that sons and nephews may succeed in the fees, and inheritances of Dukes, Marquesses, and earls: and so it is of the inferior and vulgar sort of men. And it is well said of D. Hotoman: Ius sanguinis quod in legitimis successionibus spectatur, ipso nativitatis tempore quaesitum est. Fourthly, it should bee against all laws proximitatis graduum, that they which are in a more remote degree the worthiness of consanguinity should be preferred before them that are in a nearer degree. Fifthly, because Primogenitura is an inseparable incident to the eldest son, and whatsoever is claimed by this, must bee claimed by the person of the eldest son, and none can succeed in the place of the first begotten as first begotten, because there cannot be two first begotten: But no Law more respecteth the worthiness of blood then the common Law, which prefereth the brother before the sister in case of discent: the elder brother before the younger, whereas the middle brother purchaseth land: the sister before the uncle, and the uncle before the cousin 
Littlet. Tit. Fee simplo. , and all these particular prerogatives of kindred Mast. Littleton windeth up as it were in one clew, when he saith, that when a man purchaseth land in fee simplo, and death without issue, every one, that is his next cousin collateral for default of issue may inherit: and therefore it was well and wisely agreed by the Iustices decimo quinto Elizab. in clears case, that in a collateral discent from any which purchaseth lands, and tenements, and dieth without issue, the heires of the part of the father and which are of the blood of the ancestors males in the lineal ascension by the father in the same degree, as the brother of the grandfather of the fathers side, and his issues be they male or female shall be preferred before the brother of the graundmother of the father side and his issues: And so the brother of the great grandfather of the fathers side, namely the brother of the father, of the father, of the father of the purchasour and his issues bee they male or female shall bee preferred before the mother of the great grandmother, namely the brother of the mother of the father of the father of the purchasor and his issues. For the female sex is more base then the male in lawe. And it was likewise agreed, that if the purchasor dyed without issue, and hath not any heir of the part of the father that the land shall descend to the next heir of the parte of the mother, that is, to the race of the heir of the males of whence the mother is descended, rather then to others, and in this case of clear because the blood which was betwixt the uncle of the part of the mother of the heir, and the heir himself came immediately by the woman, but the blood which was betwixt the cousin german of the fathers side,& him though it came originally from the woman, namely the grandmother, yet it is derived to the heir by the males, so that the dignity of the blood doth surprise and excel the proximitie of the degree; therefore it was adiudged that the cousin should haue the land. 
15. Eliz. comm. cleres case. 442.    

The fourth Chapter.  
That in making title by prescription and continuance of time immemoriall, all nations haue consented.  
OF all worldly things time is most puissant: for it endeth some things quickly, some things once, and at last, some things it preserveth, some things it continueth unto the end of the world, and the force of time is prettily described in these poems.  
Res omnes, aurum, chalibem, deglutio, ferrum,  
stagna, lacus, fontes, ebibo, tum fluuios,  
Tabida consumit lignum, lapidesque vetustas:  
nullaquè res maius tempore robur habet.  
If by the course of nature time be such an incroacher vpon other things, then surely arte& law doth imitate nature which give unto it such power and authority, as to change, to raise, to alter, to defeat, to strengthen and to establish titles, neither doth the law of nations attend the strict circumstances of the civil or common law, in which these two laws do square: for by the civil lawe there is required just title which the common law requireth not: and bona fides 
Gl. h. c. illud de prescrip.  which the common law requireth not and continual possession, which the common lawe onely requireth. Prescription was first brought in, that there might be a certainty of titles and peaceable possession without contradiction, for a long time might turn to a right: wherefore it is well observed in the civil lawe bono publico intraducta est vsucapio,& praescriptio vt sit aliquis litium finis: 
b. lib. 1. de vsucap.  whereupon that speech of the Lacedemonians in Isocrates is grounded: Wee hold this land given unto us by the posterity of Hercules, confirmed by the Delphicke Oracle, and the inhabitants of it being overcome of us( here note a triple title in show, and yet all these in effect but a prescription) ye know well that all possessions either private or public to bee confirmed by prescription of long time: we haue held Messana more then four hundred yeares. 
Isocra. in Arch.  And so jepthe did plead prescription against the Ammonites; 
judic. c. 11.  This land( said he) haue wee possessed three hundred yeares. The French maintain their title of france onely by prescription, as Bodinus confesseth: 
Bodin. lib. de repub.  for conquered it was by king Edward the third that happy& triumphant Monarch: assured to King Henry the fifth and his heires, 
Graft. in H. 5  not to queen Katherine and her heirs: 
Pet. Mar. comm. in lib. iud.  And some divines hold( for others do oppose themselves against this lawe of prescription) 
Aug. de te. ser. 105. Epiphan.  and observe that the Iewes never made question of the title of their Semi, because the canaanites did defend themselves by the prescription of 500. yeares: wherefore Artabanus the Parthian king did, as Tacitus saith, Per vaniloquentiam vainly demand of Tiberius the territories& possessions of the Macedonians having been a long time possessed of Cyrus and Alexander. 
Tacit an●. li. 6  And Soliman more soundly did demand the rights of Constantine the Emperour after a thousand yeares. 
Ioui. 30.34.  But most unadvisedly of all did the king of Persia demand all these things which did belong to the Persian Empire from the first foundation of their monarchy unto the conquest of Alexander Magnus, of Constantine and his son, and of Alexander severus: 
Hero dia. li. 6. zon. Ammi. lib. 17.  as if the ancient inhabitants of Pannonia should now claim hungary which the huns did conquer, name, and to this day keep: and vain was the quarrel which Masinissa made to the Carthaginians land, 
livi. lib. 34.  alleging that they ought to haue no more then Dido the Tyrian queen enjoyed, which was no more then could bee compassed by the hide of an ox being cut into thonges, for they had possessed these lands almost seven hundred yeares: likewise weak was the title which Antiochus the great pretended against the Aetolians and the jonians, because these people were once subject unto his ancestors:& he is well confuted of the romans by the lawe of prescription, that though his great grandfather, did achieve these cities by war yet his grandfather and father never enjoyed them, but the cities enjoyed their liberty. There be some interpreters of the lawe, which think the king of france by prescription to be exempted from the Emperours subiection, 
Fulg. Sace. lib. 1. C. Tit. 1.  against whom rather adulatoriously then aptly Alciat replieth, that no prescription of time will hold place against the Empire: 
Alciat. lib. 5. de just.  for that is not true in a prescription of time, which is immemoriall, that is when no man as it may be commonly believed, hath either seen or heard the contrary: and this by the civil law is the space of one hundred yeares. 
Alexan. 5. Cons. 16. Alciat. 3. cons. 24.  But here before I will grant that such prescription will hold against a king or an Emperor, this is onely in such case where neither possession hath been had, nor claim made against the said king or Emperor, for if claim only haue been made as the kings and queens of England haue done in entitling themselves kings and queens of france, and bear in their scutcheons the ensigns and arms of that kingdom, and so keep the civil possession of that kingdom, though they haue lost the corporal possession in such case I do not think that the prescription of a thousand yeares ought to prevail: but in a case of a common person prescription will hardly run against the prince. Therefore it hath been held in our books, that if the kings tenant in Capite bee seized of an advowson, and the church happeneth void, and he dieth, and the six months do pass, 
14. H. 7. fol. 22. ( nay suppose six score yeares do pass) then an office is found, the king shal haue the presentment notwithstanding the laps before the office. But if the question be asked whether the ordinary may present by laps against the king, and if he may not, how the cure shall bee served in the mean time betwixt the laps, and the kings presentment: 
Ibid. fol. 21.  It is answered by some that the ordinary may present one who shall be remouable at the kings will, and some think that he shal sequester the profits of the bnfice to serve the cure: but in some case the King may not surcease his time, as if the tenant for term of life do forfeit his estate to the king, if he be not seized during his life he may not afterward seize it, 
8. H. 5. travers. 47.  but in this case the reason is because he can haue no other estate then he which forfeiteth, and he which cometh in of the estate of an other can haue no greater right then he had: for if a man haue land in the right of his wife, or in the right of a Church he can not haue it otherwise then the Church or the wife hath it: 
18. E. 3. 20.  so if there be Lord and tenant, and the tenant alieneth in mortmain, and the lord entereth, yet he shall haue onely such right in the land as he hath in the signiory, notwithstanding that the statute do say, Quod proximus dominus intrabit& retinebit in feodo: 
39. E. 3. 38. 50. E. 3. 21. l. 5. E. 4. 61.  For this is grounded vpon natural reason, and naturalia sunt immutabilia: and the princely prescription must bee maintained bona fide. Wherefore the Duke of savoy which had the city of Nice in pledge of the French King, did unjustly withhold that city from the king being the lawful owner then, because he had inveterate possession in the same, for by the civil law a man may not prescribe in a pledge: 
l. 9. C. de pi. act. Deci. 3. consi. 108.  and divinus is likewise angry against the king of france himself for keeping Perpinianum in the like sort: Parum sincer a fide( saith he) veteris pacti conditionem multis cauillationibus inuoluebat: 
Iou. lib. 1.  for it is true that Cephalus saith, in quaestione valde dubitabili non est praescriptio. 
Ceph. cons. 102.  But surely bona fides is requisite in such matters of prescription, except it be apparent that the will of God is for the prescription: Wherefore Bellarmin confesseth, that the turk doth lawfully possess such things as he hath taken from us because God his will is that for our sins we should be cast out of the land, wherein we and our ancestors inhabited. 
Bellar. 5. contr.  But he doth not possess them bona fide, because he can not by any special mean convey them particularly to himself, for as Doctor gentiles hath well observed: An Turcae opinio latrocinantis cogitat de iusta voluntate Dei. 
Alb. gentle. lib. de iu. bel. 1. 22.  Aratus the Sicyonian was so strong and peremptory for the title of prescription, that he did not think it convenient to remove or take away from the usurpers any thing that they haue violently taken from the owner, if they haue had possession during the space of fifty yeares onely. 
Cicer. 2. de office.  Prescription hath always been of force to hinder these that had right to pursue their claim: Wherefore Demosthenes saith well; he that hath held an other mans lands or goods a long time should not please himself therewith, but impute it to fortune which hath hindered the lawful owners. 
Demosth. ad maca.  Is any thing more to bee laughed at then that which is said of some interpreters of the law, who are not to bee laughed at, that the kingdom of spain may now be claimed by the roman Emperour, by reason of his ancient imperial right, whereas it is manifest that sithence the time of the ancient roman Emperours, it hath been a long time possessed of the Saracens, a long time of the Spaniards.   

The fifth Chapter.  
That by the consent of all nations consent principally maketh a lawful marriage.  
IF a man should examine the several rites, circumstances, and ceremonies of the diuers people of the world in the knitting and celebrating of marriage, he might as well number and observe the diuerse-couloured spots of the chameleon: for every nation hath had in this by some fatal lot both their custom and change of custom: I will onely endeavour to prove that which is contained in my assertion, that by the consent of all nations &c. Tne definition of things is alway the best proof: therefore it is good to begin this discourse with the definition of marriage: marriage is the lawful coniunction of man and woman, containing an individual society of life, and the participation of divine and human right 
30. q. c. nullam. , where it is said, a lawful coniunction, nothing else is meant, but a free consent executed by the contract, which as it is the beginning of the definition, so it is the ground of the marriage, and these words, containing an individual society of life, do signify that they shall continue forever together as long as they live: Howbeit the rule of the common Law do in this savour of the irregular Religion, Post contractum matrimonij ante carnalem copulam posset alter altero inuito religionem intrare 
Gazalup. in verb. nuptiae. . And for the further proof that the ground of marriage is consent, there be three things by the Canon Law required to marriage 
Codi. ap. C. ulti. c. 27. q. 2. , Fides, Proles, and Sacramentum: fidelity which is put in the first place is the hart of marriage, and it springeth of consent: and therefore if a man do contract with a woman in this sort, Contraho tecum si te pro quaestu adulter andum exposueris, this is no contract of marriage, because it is contra bonum fidei, which consisteth in this, that neither of the married couple shall break the bond of marriage, but shall faithfully and vnitedly observe it. Likewise progeny is an other thing that marriage requireth, and therefore it can not be a good contract of marriage, if it be made in this form, Contraho tecum si generationem prolis euites, or si venenum sterilitatis accipias, because marriage was instituted of God for the solace of man, and the multiplication of mankind by children. Thirdly, a solemn promise is requisite in marriage: and therefore if a man do contract with a woman donec ditiorem, vel pulchriorem habeat faeminam, this is no good league of marriage, because it is contrary to the oath of an individual society. And so if any man in a foreign land sucking as yet the smoke of the Popes Tobaccho be a votary to Religion, and a bondslave to his cloister; for England( the Lord be praised) is at this day as free from monks, as it is from wolves. Three things are required at his hands, namely, chastity, obedience, and the abdication of property, as well in lands as in goods 
Gazalup. in verb. matrimon. : But that consent hath been the ground of matrimonial contracts, may appear by the usual course and practise of nations: Wherefore virgil exclaymeth against Romulus for marrying the Sabine women against their wills, and accounteth it rather a rape, then a marriage, Raptas sine more Sabinas: sine more, that is, contrary to the custom of nations 
Virgil. 8. Aeneid. . And Propertius inueyeth against him for this more vehemently 
Propert. 2. Eleg. 6. : 
— tu criminis author,  
Nutritus duro Romule lact lupae  
Tu rapere intactas docuisti impune Sabinas.  Yea divines Tertullian and S. Augustine haue sharply reproved this fact of Romulus 
Tertul. de de spect. et adu. val. , and Cyprian agreeth unto them, reprehending Romulus in this maner, Vt Matrimonium facias rem concordiae per discordiam auspicaris, rapis, faerocis, fallis,& nuptiae tibi sunt rupta hospitij faedera 
Cypri. lib. 4. de ido. na. . By the civil Law marriage may bee concluded by an oath, which being but a contract, it called sponsalia de futuro 
ff. de verb. sing. l. verbum erit. : And so in ancient time the Law seemed to be, as may appear by these wrested words of Cydippe to Acontius: 
juro tibi sanè per mystica sacra Dianae,  
Me tibi venturam comitem sponsamque futuram 
ovid. in epistol. .  The marriage betwixt Dido and Aeneas was by consent accorded, by consent prosecuted, by consent executed, being witnessed and celebrated coelo tonante, and no otherwise 
Virgil. lib. 4. : for the Phrygian and Tyrian lords followed their hunting, whilst the great hound of all carried away the hare. And the marriage betwixt Martia and Cato wittily described by Lucan had no public attestation, but the presence of Brutus only: 
Pignora nulla domus, nulli coiere propinqui,  
Iunguntur taciti contentique auspice Bruto 
Luca. lib. 2.   But I would not be so understood, as though I should haue this meaning, that nothing else is requisite to the perfection of marriage, but only the bare consent: For to explain my meaning more at large, I hold that even by the Law of Nations, consent is only the efficient cause of marriage: but the material cause is corporum coniunctio, the formal, the bringing of the wife into the husbands house, et aquae, e●ignis interuentus: and therefore in my opinion D. Hotoman is not justly reproved of D. gentiles 
Alberic. gentle. lib. 3. lectio. et epistolar. c. 6. , for holding that this deductio in domum is the formal cause of marriage, for though the Emperour say 
L. 15. D. de cond. et dem.  uxor fuisti: deductio in domum ostendit, so that by the opinion of gentiles, this deductio shall be onely a proof, and argument of the marriage& no substantial form of it: yet by his favour this is nether logic nor reason; for may not an argument be drawn à causa formali, and because anima is a sign corporis animati: for a man may reason thus, animam habet: ergo est corpus animatum: therefore shall not anima be the form of a living body? But if we will be ruled by justinian, the opinion of D. Hotoman seemeth in this to be nearer to the truth, though his learning and iudgement, if I haue any iudgement, be far inferior to the worthiness of gentiles: yet I aclowledge them both to be worthy men, et vitulo tu dignus& hic. But to examine the rule of the Emperour, which before I spake of, non impletur nuptiarum conditio nisi nuptiarum accedat festiuitas 
L. sancimus 24. C. de nup. , it seemeth that there must be necessarily deductio in mariti domum, as may appear by the ancient custom of the romans in their marriages, which is briefly glanced at by virgil in these words, Sparge marite nuces 
Virgil. in Bucolic. , to which there is a custom in some part of England somewhat correspondent, which hath been much used, namely, that the husband breaketh a cake over the head of the wife, as soon as she is within the threshold of his house: which custom and the like I will neither commend, nor discommend, but will onely censure them somewhat agreeably to Senecaes 
Augusti. lib. de civit. dei 6. c. 10. ex Senec. lib. de supper stiti. et matrimon.  censure of certain points of the civil theology of the Romaines, Haec omnia populus seruabit tanquam consuetudine recepta, non tanquam deo accepta. And though gentiles press Hotoman with this objection out of the civil Law, that the marriage may be celebrated by an other, viro absent; but not muliere absent 
l. 5. D. de ri. nup. : Yet that is no ordinary course of marriage, but extraordinary: As when the parties cannot conveniently come together, as being severed by Sea, which happened lately in the case of james king of Scots, who was married to Anne the sister of the king of denmark, by a substitute or enter-deux, as Chythraeus reporteth 
Chytr. lib. de reb. orb. arcto. ab anno 1580. vsque an̄ 1590. Eyzinger. in thes. princip. . And the cannon Law which D. gentiles too hastily calleth irrationale, erroneum, caecum, auarum totum 
Alberie. gentle. lib. 1. lecti. et epistolar. c. 11.  will show this difference unto him: for it maketh two sorts of marriage, both lawful and perfit, yet the one it termeth verum, the other praesumptum. Verum Matrimonium is thus defined: Which is made betwixt lawful persons by apt words, all impediment of law removed: The other is thus defined, which by the intervention of some other is celebrated betwixt lawful persons by the arbitrage of some others, and there doth not immediately succeed copula carnalis 
Gof. in tract. de contrah. . But in dead these very words, duxisse vxorem, which signifieth the complemental act of marriage doth sufficiently import the necessity of the form of marriage above mentioned. The efficient, material, and formal causes of marriage haue been above shewed: The final cause, as all will agree, is the propagation of children 
l. si vicin. 9. c. de nup. , and the restraint of wanton lust: If this assertion should be examined by the civil Law, it might receive great disputation, varying and straying wholly from scripture, the authentic of Religion, yet wholly for consent: for the civil Law is so strange for consent, that it is positively set down by a great civilian; That if a man do use too familiar acquaintance with a gentlewoman that setteth not her body to sale unto him, that this is not concubinage, but marriage 
Modestin. in l. in liber. 24. D. de rit. nup. . An other civilian holdeth, that a woman to whom one hath shewed an husbandlie affection, ought in continuance of time to be accounted his wife 
Papin. in l. donation. 31. D. de donat. : To whom agreeth ulpian saying as boldly and libidinously, Betwixt a concubine and a wife there is no difference, except the wife be a more worthy parsonage 
ulpian. in l. item legato. 49.§. 1. D. de leg. 3. . Yea even in the body of their Law it is set down for a rule, that inter concubinatum et matrimonium nihil nisi affectio interest 
L. 3.§. 1. D. de donat. inter vir& uxor. : ingenuaque mulier domi ante testationem pro uxore habenda est 
L. 3.§. 1. D. de donat. inter vir& uxor. . These are the oracles of the parots and parasites of the roman Emperours, who sought to shoulder out the truth of God his word, and to varnish their own sins, by the dreams of such dissolute Lawyers, who thought perhaps that they might as well defend, as commit fornication, and concubinage: Vpon whose reverend opinions the Pope sprinckleth the holie-water of his dispensations, yea and dispenseth for incestuous marriage, not onely with Dukes, and noble men, but as Angelus Perusinus sheweth, even with Barbors, Tailors, and Butchers 
Angel. Per. in l. matrem.§ filiam ad Treb. . But it is fitly said by some, that he doth rather dissipare quàm dispensare 
Felin. post Doct. in C. quae ecclesiarum de constit. . And others haue been bold to say, that he which obtaineth such dispensation, perhaps will hardly escape in foro poli, in the court of heaven, howsoever he be safe in foro Romae, in the court of Rome 
Arg. C. fin. de prescript. et Alci. in l. 5. pedum C. fini regund. . howsoever the canonists, whereof the most part do bear the cognisance of the whore of Babylon, do avouch that by such dispensation, veritas naturae per Papam non tollitur,( which he cannot do though he would) sedinumbratur: and therefore say they, the dispensation is lawful 
Arg. c. seeds de rescript. l. 3.§. permit. , an argument drawn from the owls nest, and from no place of logic: But the Emperour Theodosius speaketh only of a lawful and honest consent, in more modest terms, saying: Matrimonium absquè vlla pompa et celebritate nuptiarum, atquè adeo absque vllis dotaribus instruments firmum est, liberique ex eo suscepti justi sunt: here the Emperour excludeth pomp from marriage, but not consent: Neither doth he admit concubinage to be marriage 
l. si donatio●um. 22. c. de nup. . It is now shewed that consent is required by the imperial Law to the constitution or making of marriage. It shall not be amiss to inquire, whether it were necessary or no by the ancient Law of the romans, which was in the time of their flourishing estate, the Law almost of all the Nations of the world, as Ouids speech importeth: 
Gentibus est aliis tellus data limit certo  
Romanae spatium est urbis,& orbis idem 
ovid. 2. Pastor. .  And Claudian avoucheth the same, though he lived when the roman common weal was much impaired: 
Armorum legumque parens quae fundit in omnes  
Imperium, primiquè dedit cunabula curis 
Claud. 3. stil. .  By the ancient Law of the romans, if a woman had been kept in a mans house by the space of a year, he might claim her as his wife 
Hotomanus in comment. ad duode cim tabul. : And by that Law a man might lend his wife to his friend, for the procreating of children 
Strabo lib. 11. Plut. in Cat. Tertul. in apologet. ; as Cato lent his wife for that purpose to Hortensius, which though Plutarch account fabulous: yet Appian reporteth it as true 
Appian lib. 2. de bel. civi. , and Quintilian affirmeth the same 
Quintil. lib. 2. c. 5. . Neither is it unlikely that it was a custom practised of the romans: for this lending of wives was permitted by the laws of Lycurgus: and as Plutarch reporteth, it was a Law established by Numa 
Plut. in comparat. Lyc. et Num. : Abrutish Law doubtless, and one of the main errors of these great common weal men, who( as the Apostle saith) became vain in their thoughts, and their foolish heart was full of darkness and as they regarded not to aclowledge God, so God delivered them up unto a reprobate mind to do those things which are not convenient: 
D. Paul. ad Roman. 1. v. 2●& 28.  Now that we haue shewed that consent is necessary for marriage, it remaineth to bee declared how far forth it hath been accounted necessary. When the roman Empire was in her infancy and first rising, it seemeth that a very slight consent would haue served, as may appear by these words of Suetonius, writing the life of Caligula: Mar. L. Cassio Longino, consulari collocatam abduxit, et in modum justae uxoris propalam habuit. But of the Emperour Constantine furtiue and privy marriages are utterly condemned and abiudicated: 
l. uxor. 7. Cod. de repub.  because it is against christianity, to which( the Lord therefore highly be praised) all the nations of the earth begin to open their eyes and give their free consent. Such marriages as haue the public testimony of the Church are greatly commended of Tertullian: Vnde sufficiam ad enarrandam foelicitatem eius matrimonij, quod ecclesia conciliat,& confirmat oblatio,& obsignatum Angeli renuntiant, pater rato habet. 
Tertullian lib. ad uxor. 2.  And the Emperour lo hath determined that the marriages of Christians should be confirmed by the testimony of holy and ecclesiastical prayer, and that these marriages which are otherwise contracted should not be held for good, and Harmenopolus testifieth that by ecclesiastical Canons it is provided, That there should be no privy marriages, and that no marriages should be celebrated out of the Church: 
Harmenop. lib. 4. c. 4.  And by the common law as M. Fitzherbert saith, a woman married in a chamber shall not haue dower of her husbands lands: 
Fizh. N.B. 150. N.  but he modestly saith, that it seemeth reasonable that shee should haue dower, M. Parkins peremptorily affirmeth, that the lawe in his time was directly to the contrary, that the lawe was so in his time, I must take vpon M. Parkins credit: for I haue not red( to my remembrance) any year book which was written in his time or since, wherein that is recorded for law, as to that which M. Fitzherbert saith, that it seemeth reasonable, how could it seem reasonable unto him, unless the marriage itself had seemed reasonable,& if he thought such a marriage to be good& lawful, therein saving reformation he failed, for beside the authorities which immediately before I haue cited, to prove that marriage must be celebrated in a public place, and in public maner, it appeareth, that in the jewish common weal, that course was followed in the time of our saviour, by part of a similitude which he useth: Let your loins be gird about& your lights burning& ye yourselves like unto men that wait for their master when he will return from the wedding, whereby it is manifest, that some testimony of friends and neighbors is requisite to the celebration of marriage: 
Luk. c. 12. v. 35.36.  and Pope Innocent the third reporteth, that this was no new guise, nor any popes invention, but the custom of the ancient Christian Churches, that conuentiones matrimoniorum in ecclesia promulgentur. 
cap. 4. extr. de cland. desp.  And this promulgation is in Lumbardie called Bannum, 
c. cum tua extra despons.  in England the Banes, or asking in the Church:& by the custom of diuers common weals, it is called manasse, the giuing of hands: 
in c. cum tua. 6. qui matr. accus. poss. & so is the rule of justinian the Emperour, who saith, that if any divinis tactis scriptures shall swear unto a woman that he will marry her, this saith he is sufficient for the contracting of marriage, but yet there must bee a public celebration of the marriage according to the rite& solemnity used in Christian churches: 
justin. now. 74.§. 4.  so then it is in some clearness that consent principally maketh marriage, as the ground of that straight society, and the celebration is as the form rising out of this material cause, which maketh it to bee known, and to bee publicly notified and ratified: for as to the age of the party, who is to bee married, that he should bee plenis nubilis annis, or that he should haue power of engendering, vt justo accedat robur amori, or that they may bee equal in degree, because dulce jugum paritas, these do not make marriage, but cause it to bee a more convenient marriage, but the consent that maketh marriage must be overt and express: for though the parties will, do appear in a secret will, and which may onely be proved by circumstances, yet consent is onely verified in an express& unfolded will: wherefore D. Baldus saith well, that a neutral consent, which is not demonstrated by word, nor by dead, is not correspondent to the acts of men, neither doth it make them essentially perfect. Now if any man doubt whether the consent of the parties onely do knit the marriage, or the fathers consent be necessary, as to that point the civil lawe, which in this matter all nations follow for the reasonableness of it, standeth thus. Eorum qui in potestate patris sunt sine voluntate eius matrimonia jure non contrahuntur, said contracta non soluuntur: contemplatio enim publicae utilitatis( that is to fill the city or common weal with people) privatorum commodis praefertur: 
Pant. l. 2. senten.  And again, Si fort pater concordans matrimonium, that is, a fit marriage)& fort liberis subnixum( that is, confirmed by procreation of children) velit dissoluere, et certo jure patriae potestatis turbare, sic erit res tractanda, vt patri persuadeatur, ne acerbe patriam potestatem exerceat. 
lib. 1. de lib. exh.    

The sixth Chapter.  
That by the practise of all nations democracy hath been bet down, and monarchy established.  
democracy I haue always taken contrary to the ancient division of monarchy, aristocracy, &c. to be no form of a common weal, if it bee properly taken for the equal sway of the people without any superiority: for the heel can not stand in place of the head, unless the body be destroyed and the anatomy monstrous: it is against the nature of the people to bear rule: for they are as unfit for regiment, as a mad man to give counsel, which Anacharsis well perceiving did laugh at the assemblies and counsels of the Athenians, because they did commit the sum of their affairs to the peoples fury: and Xenophon writeth thus of the Athenian, that is, his own common weal: I can not allow the state of the Athenians because they embrace that form of common weal, in which wicked and lewd persons do more flourish then good men and innocent: 
Xenoph. in lib. de repub. Atheni.  which commonweal notwithstanding Bodinus calleth vntruely omnium popularium laudatissimam, Plutarch as vntruely, omnium minime vituperandam, but if it be true that they say, in how miserable estate are other popular common weals, all which( the roman commonweal onely excepted) are far short of the Athenian estate: and Machiauel did abuse his own pen, and the patience of others, in one place preferring Democracy before al other kinds of government, 
Machia. in obseru. in livi.  yet in another place, showing how he would haue italy restored to the ancient glory and excellency, he sheweth that that can not be done but by a monarchy, and onely by the Popes monarchy, 
Machiauel. in lib. de princip. c. 9.  in this point accomplishing the part rather of a magician, then a mathematicke, wishing for that which the devill would desirously effect, but imagining that which in truth can never be: yet again he departeth from this opinion, when he prefereth the Venetian commonweal before al commonweals. 
Machiau. in livi.  Plato was wont to call Democracy, Nundinas populares, the peoples fair: wherein every thing was sold for money. Aristotle disagreeing from him in many things, yet he agreeth with him in this, utterly condemning democracy, using not onely strong reasons of his own, but Homers authority for it {αβγδ}, and Maximus Tyrius a worthy man in his time, 
Maxim. Tyri. orat. 3.  that he might convince democracy to be a most pernicious evil, bringeth for proof hereof, the examples of the Athenians, the Carthaginians, the Siracusans, and the Ephesians:& if a man should seriously respect the brittle dependence of things vpon the peoples brains, he shall easily and clearly perceive, that whosoever shal but ground his own estate, much less the estate of the common weal vpon the peoples fantasies, domum ex luto facit,& findeth nothing more certain then uncertain accidents,& if a man should compare honour to vulgar reputation, he might as well compare a course packthreed to the fine twist of the silkeworme,& a garland of ivy to a crown of gold: to be strait way an honest man, because the multitude commend him, is no more necessary then that a man should be evil, because few are like unto him: I would rather like a contrary argument: he is liked of the most, therfore he is not to be followed of the best: who was more favoured by the greatest part of the Troians thē the strumpet Helena? she that was recovered& recaried forsooth for her excellent beauty by so many thousand ships, by so many valiant& unconquered captains, after the downfall of a goodly city, after the flames of so many wars, after so many spoils, and homicides. The people did wonder at that paragon, as having excellent felicity to be carried home in so glorious a triumph,& to be transported from Troy to Greece, from a flood of hony to a sea of nectar, being the blazing star to that famous war which the bravest soldiers do at this day admire: At Capis& quorum melior sententia menti, what thought they of this popular miracle? what thought Eneas? that she was Troiae& patriae communis erinnis: what thought Antenor, a wise, just, and virtuous nobleman, Antenor censet belly praecidere causam. But if every thing that the common people approveth be commendable, what is then discommendable? even that which deserveth most commendation, namely virtue itself. When one told Antisthenes that the most part liked him, he demanded of him incontinent for what 'vice they liked him, as if it were impossible that virtue should please the common people. Anacharsis thought it very inconvenient that artificers should contend in cunning, and these that had no arte should bee iudges of their cunning: by the same reason they that are not virtuous, can not judge of them that be virtuous,& if they can not judge of them, how can they with conscience praise them: and if not them, how can they with safe conscience praise others. Is it not therefore a madness to gape for their suffrage, which are incompetent iudges, and to care for their controlment which are unsensible censors. photion liked nothing that the common people liked. Seneca thinketh that none can please the people to whom virtue is pleasant. 
Senec. epist. 29.  The multitude haue this proverb very rife in their mouths( too many to bee good) and yet in this glass they can not see themselves, as they likewise said ( omnia plena stultorum) forgetting themselves.  
This beast of many heads hath a threeforked tongue: with the one part it tickleth the ears of them whom they flatter: with the other it licketh their wounds: with the last, and sharpest it pricketh their hearts: with the first they flatter them, lulling their sences with faire words, and with soft speeches sliding into the bosom by forgeries and fables: with the other they lick their wounds, excusing their crimes, extenuating their faults, cooling and calming their rage, that are incensed against them: with the third they prick: for let the popular idol be once crushed, none will sooner tread vpon him then the people;& if perhaps they weep for him in this especially is the proverb verified, lachryma nihil citiùs arescit: They deal with their idols as the divell dealeth with witches: when they are in prison they leave them: Nay, for the most part none are more proan and ready to accuse when time serveth, then these adulatorious excusers, Quo teneam vultum mutantem protea nodo? The wayward people may be justly compared to a bundle of thorns, which will bear up a great man, but will prick him if he lean or lye vpon it: They are like the winds, which Neptune trussed up, and delivered in a bag to ulysses 
ovid. in Metamorph. , being sure as long as the mouth of the bag is shut, but if there be never so little a chink or riff, they quickly glance out, one ranging one way, an other some other way, like to Samsons foxes with fire-brandes at their tails. What a frenzy is it therfore for any to plant his credit vpon such restless brains: as if a man should endeavour to make the sea solid, to make mountaines plain, to build a castle in the air, and to measure a flies foot: for these blind puppies, follies natural children, melius, peius, profit, obsit, nihil vident nisi quod lubet 
Terenti. . But who list to know the manners and practises of the people more fully, let him bend the right eye of his mind to historical contemplation, then he may see Verres accused and convicted of diuers villainies, of notable spoils and robberies, of a thousand excessive briberies at the least,& false judgements in number more: yet by plebiscite or popular determination to be quitted and freed, but by the sentence of the same Iudges, Rutilius, Metellus, Coriolanus, Scipio the elder, african, and Cicero, men of rare virtues, are confined and banished out of Rome: innocent Hermodorus is thrust out of Ephesus, Aristides chased out of Athens, Themistocles death in exile, Socrates endeth his life in prison: so unjust a measure to good deserts is the fantasy of the multitude. photion a mirror of integrity, the glory of his time, and the honour of Athens, who was forty and five times chosen by the earnest desire of the people to be their chief captain, which he administered to the great good of that estate: yet in the end they condemned him to death 
Plut. in Phoci. . But Antiphon that vicious varlet, and steigne of Athens, was by the people absolved and acquired, as altogether innocent: which absolution Demosthenes not brooking, did so hotly pursue the matter, that he caused him afterward to be condemned, and put to death by the decree of the Areopagites 
Plut. in Demosth. . And alas, what praise can there be given to the people for any action commenced and carried by them? did Rome flourish by popular effects? no, sallust saith that the credit therof belonged to some few excellent governors 
sallust in princip. Catil. . livy saith, Sub vmbra Scipionis vrbem terrarum dominam later, nutus eius pro decretis patrum, pro populi iussis east: under the shadow of Scipio the city, the lady of the world did cabbon, his beckes were the decrees of the Senate, the commands of the people 
livi. lib. 30. . So did the theban state a long time flourish, but it was by the wisdom of Pelopidas, Epamondas, and other special men. So the Athenians having lost their prudent governor Pericles, they lost the true and essential form of their city, which being as a ship in the midst of the sea, without mast and rudder, whilst one casteth the anchor, another spreadeth the sail, one keepeth the haven, an other moveth the stern, all goeth sodainlie to wrack 
Polyb. lib. 6. . Foolish were the Argentinians, Lindouians, they of seen, they of Genoway, they of Florence, who seeking to settle popular government, did pluck up from the roote their ancient nobility, and having made three degrees of Citizens: some great, some mean, some vulgar; They of the two last ranks did utterly subvert the government of the first, and then contending amongst themselves, did burn in such fury one against an other, that streams of blood did run in the streets, and the state being now couched, and devolved to the dregs of the people, they never left of killing and slaughtering, till by the aduise of the Pope, and the neighbour-cities, they had wholly submitted themselves to a strange governor 
Anton in. et Machiauel. in hist Flor. . Thus in the end they came to a monarchical estate. And these Nations which haue no resemblance of a city in them, do create a Duke or captain, who may govern the rest, and prescribe Law unto them: as in Guzula a region of Affrike, and in the borders of the kingdom of Fez: They that dwell near the mountain of Maguano, if they perceive any stranger passing by, who excelleth in wisdom, they do entreat him, or enforce him if entreaty will not serve, to devise laws for them 
lo Afer. in lib. de reb. Affric. . The romans in all their daungerous accidents did aclowledge the government of one to be the best, and therefore choose a dictatory, whose government Appian pretilie calleth regnum negatiuum, either because it denied a regal power onely in show, or because he had authority to deny that which the rest had affirmed. Trepidi patres( saith livy) ad summum auxilium decurrunt, dictatorem dici placuit 
livi. lib. 6. : And again he saith, that when Hanniball did molest Italy: ad dictatorem dicendum remedium iamdiu desideratum civitas confugit 
livi. lib. 22. , and such was the reverence of the dictatory, that, as the same livy saith, Dictatoris edictum pro numine semper obseruatum 
livi. lib. 6. . And Appius being consul, giveth aduise to create a dictatory for the bridling of the rage of the people, affirming minas esse consulum, non imperium, ubi ad eos qui vnà peccauerunt prouocare liceat, agedum Dictatorem à quo prouocatio non est, creemus 
( livi. lib. 2. . But monarchy hath been embraced by the people of all Nations, democracy rejected: as namely, by the Medes, Persians, egyptians, Parthians, Macedonians, Arabians Indians, Aethiopians, Scythians, Tartarians, Turkes, Danes, French, Moscouites, Polonians, Britanes, africans, and Perusians. The name of a king saith sallust, is primum in terris. By scripture it appeareth, that kings were ordained of God: for it is said in deuteronomy: Thou shalt make him king over thee, whom the Lord thy God shall choose: one from among thy brethren shalt thou make King over thee, and thou maiest not set a stranger over thee, which is not of thy brethren 
Deuteron. 17. vers. 15. . And it is said of Moses: He was in Israel as King when the heads of the people, and tribes of Israel were gathered together 
Deuteronom. 3●. ver. 5. . And aftere the return of the Hebrewes from Babylon, where they were captives, to their ancient country of Palestine, they did obey the kings of Persia, Syria, or egypt, till Iudas Machabeus an Asmonite did recoil from Antiochus the great king of Syria, and transferred the high-pristhood and kingdom into his own family. And as all Nations haue embraced monarchy, so the wisest men in all nations haue approved it: As Homer 
Homer. lib. Iliad. 1. , Herodotus 
Herodot. lib. 5. , Plato 
plate. in politic. , Aristotle 
Lib. ult. Metaphisic. , Xenophon 
Xenoph. in cyrop. , Plutarch, Philo 
Plut. in lib. de creati. Regis. , Apollonius Thyanaeus 
Philostratus. , S. jerom, S. Cyprian, Maximus Tyrius 
Maxim. Tyri. in orat. , and Bartolus the deep civilian 
Bartol. in tractat. de Regim. civit. nu. 10. , Lucan 
Luca. lib. 1. et 2. , Aquinas 
Aquinas in lib. de princip. , Erasmus 
Erasm. in lib. de instit. princip. , Tacitus, S. Augustin 
D. Augustin. lib. 5. de civit. dei. c. 1. , and S. Ambrose whose particular and plenary assertions I omit, because I hasten now to an other matter which hath not been so much discoursed of as this.   

The seventh Chapter.  
Of the Law and Iustice of arms, of Leagues, of Embassages, and denouncing of war, of Truce, of Safeconduct, captives, Hostages, Stratagems, and conquests, according to the Law of Nations.  
IN purposing to speak at large of the Law of arms, and the members and parcels thereof, I do respect the good of the civilian, who in these matters is very often employed: And of the professors of common Law, who shall not do amiss, in considering of these things that shall be delivered, for the more full opening and explaining of the Statute of 13. Rich. 2. cap. 2. which is thus: To the Constable and Marshall it belongeth to haue conusans and knowledge of contracts, touching feats of arms, and of war; out of the realm, and also of such things as touch arms or war within the realm, which can not be determined, nor discussed by the Common Law &c. For the better entering into this discourse, I think it best to begin with the definition of war, which may be thus: war is a just contention of men armed for a public cause, for though many things be done in war without weapons, yet more is no war without the furniture of weapons, and there is nothing in war which doth not lye hidden as it were under the safeguard of arms, and which may not be referred to the same: And it must be a public contention, because war is not the quarreling fight and enmity of private men: for war is therefore called Duellum, because it is the contention of two equal persons 
Varr. lib. 6. de lingu. lati. : And therefore the Syrians( as I am informed) do thus translate the words of our saviour: What king goeth to war against an other king 
luke. 14. , in this form: What king goeth to war against his fellow king: that is an other king equal unto him: Therefore Lipsius his definition is to bee disliked, in that he defineth, war to bee force and arms against a strange Prince or people 
Lipsi. in polit. : for by that he maketh the outrage and violence of private men and pirates to bee war: for war is a just contention, and by this word ( just) excursions and depraedations are excluded: Wherefore Scipio did account them robbers and ringleaders to theefes, which did deal by such kind of spoil and pillage 
livi. lib. 28.40.41. Flor. 2. . And livy censureth the Ligurians rather to be robbers then just enemies, because being poor at home, they did invade the dominions of others, and were more easily overcome then found out: Neither did they observe the Law of arms, because they did slay captives, and cruelly dismember them. And divinus speaking of the truce betwixt the Turkes and Hungarians saith, that by an ancient custom, they did make small skirmishes and extraordinary incursions vpon the borders, if they were not resisted by the preparation of Ordinance planted against their walls 
Ioui. lib. 36. . war was first brought in by necessiitie, for in that decisions of courts of Law, and the determining of controversies by their rules, could not be betwixt two strange Princes of equal power, unless they should willingly agree to such an order, because they haue no superior nor ordinary judge, but are supreme, and public persons: therefore the iudgement of arms is necessary because such war( saith Demosthenes) is against them which can not bee bridled by Law 
Demosth. de Cherson. ; But process of svit is only for them which are subject: For as there be two kindes of contention; one by trial of Law; the other by trial of arms: so we may not use the later, if we may haue help by the former. This was the cause that the romans were wont to move them, with whom they dealt, that their quarrels might be ended by mutual debating, and course of iudgement, rather then by blows, and weapons. And so the Ardeates, and Aricines, the Neapolitanes, and Nolanes did refer their controversies to the iudgement of the romans 
livi. 3. Dionys. vit. Cicer. 1. de office. . So the Samnites did provoke the romans to debate their common cause betwixt their common friends 
livi. lib. 8. . And Archidamus said, that it was not lawful to wage battle against them which did offer themselves to bee ordered by peaceable iudgement: 
Thucid. l. 1.  and Cyrus who is proposed as a pattern of an excellent prince, by Xenophon, a principal Philosopher and very wise governor maketh the king of the Indians an Vmpier betwixt himself, and the Monarch of Assiria: 
Xenoph. Cyropaed. 2.  therfore they which fly from this peaceable kind of trial, which is nothing else but a disseptation of of words and reasons do digress from iustice, humanity,& commendable examples: but it is good to bee provided for arms, when the parties will not tolerate indifferent hearing of the cause, which the poets seem to haue signified when they feigned Chiron the centaur, whose vpper part did resemble a man, the inferior part a horse, to be tutor to Achilles, 
Statius Achilles lib. 1.  that they might give us to understand, that when a controversy could not be moderated by reason, the strength of the horse should be used: for against them, which will not be ruled by equity and reason, force is not unjust. But( as Scipio said a governor in war ought like a physician to use iron and lancing in the last place; 
Plut. in apophth.  And as to the bearing of arms, it is certain& manifest, that private men, and people subject, and inferior princes, haue no such necessity to make trial by battle, because they may pursue their right by other lawful means in some court of iustice: neither haue private men any authority to assemble a multitude. It is Pl●●●es law, Si quis prinatim sine publico scitu pacem b●●●mue fecerit capital esto: 
Plut. lib. ult. de legi.  If any man privately without public knowledge do make war or peace let it be capital unto him: for it belongeth to the power of the supreme governor to make war or peace: 
Deci. cong. 20.  and therefore by the law of Iulius it was high treason for any to levy arms without the consent or command of the prince, 
l. 3. ad l. Iu. ma. & the romans did think it convenient to yield such a man into the hands of them whom he had provoked by weapons: 
Appian.& Plut. in cat. mi.  and upon such occasion they demanded the person of Annibal: and so the Philistines vpon like cause demanded samson, to whom the Iewes yielded him; 
judic. 15.  and Cato thought that the army was to be recalled,& Caesar to bee yielded up into the enemies power, because he maintained war in france without the warrant of the people, in whose hands the commandement of war and peace was: 
livi. lib. 4. 16. 18. 19.  but without urgent cause and lawful authority there should be no taking of arms or raising of multitude,& therfore it is well provided by the statutes of the two sovereign queens& sisters, mary& Elizabeth of England: That no man without authority, by ringing of any bell, or by sounding of any drum, trumpet or horn, or any other instrument, by the firing of any beacon, or any other instrument, &c. with force and arms shall alter any laws or statutes. 
1. Mari. parliam. 1. c. 12. 1. Eliz. c. 7.  And in ancient times kings had the supremacy over other, of commanding of commencing war, and of m●●tering men, as appeareth by the sacred history ●et sometime vpon a great or necessary cause, 
1. Reg. cap. 8  as if there be danger in delay, or the sovereign prince be absent, war may be undertaken without the commandment of the prince, if it be vpon occasion of just defence, which by the law of nature is granted to every one, and there is an excellent example to this purpose in the roman history of L. Pinarius, who was the captain of a garrison at Enna in Sicely, who when he did foresee the revolt& defection of the citizens of Enna to the Carthaginians, and he could not conveniently sand ambassadors to the Consul Marcellus, though he were not far from thence, suddenly he did kill all the citizens, by which act Enna was still reteigned for the romans,& Marcellus did not disallow the dead: 
livi. lib. 24.  therefore Cicero commendeth the enterprise of Octauius Caesar, who not expecting the decree of the Senate, did of his own head undertake war against Antonius: for the time of consultation was not yet come, but if he had thē omitted the time of battle, he did well foresee that the common weal being oppressed, nothing could bee decreed by Senate: 
Cice. Philip. pic. 8.  and the Senate did after allow by public authority the war undertaken by Octauius of his own private aduise: 
Cic. Philip. 5.  so Scipio Nasica did deserve exceeding commendation, who did voluntarily offer himself a captain to all good Romans for the oppressing of Ti. Gracchus, together with his treacherous confederates. 
Valeri. Maxi. lib. 3. c. 1 Appi. de bel. civi. lib. 1.  For it is necessary( as Cicero saith) in such perturbation and tumult rather to obey times then customs: for in peace wee must follow custom, in war profit: but now as to the iustice of warres, 
lib. 2. de rep c. 5.  if bellum haue his denomination a belluis, as some do imagine, it should seem to be undecent and discrepant from the nature of man. hear of that matter Seneca: Wee punish homicides and particular murders, why do wee not punish warres and the glorious sin of people slaughtered. covetousness& cruelty know no measure: By Senate-counsell and popular assent bloody actions are executed and publicly commanded, which are privately forbidden. 
Senec. epist. 96.  Men, a mildred kind of creature, are not ashamed to boast of bloodshed, when as dumb and reasonless creatures haue peace amongst themselves. 
Cuia. Critic. not. 1. &c. 2. de cla. desp. Lipsi. 2. mili. Rom. 12.  And at the first sight this is a great argument, that if dumb creatures, which can not debate the causes of their anger haue peace amongst themselves, how much more ought men to do the like, unless they will bemore beasts then the beasts themselves. Cyprian hath the like saying: Homecide when particular men do it is accounted a fault: when it is publicly done it is accounted a virtue the greatness of cruelty not the reason of innocency doth purchase impunity and pardon. And fitly to the same purpose, though not purposely for the same: laws haue agreed to sins, and that is admitted to bee lawfully which is public: 
Cypr. 2. ep. 2  And Seneca again, Small thefts are punished, great are carried in triumph. 
Senec. ep. 88  Tertullian saith, that wrong is proper to war, and as far as his authority stretcheth, prohibiteth battle to Christians: 
Tertullia. adu. Iud.  but sithence the time of Tertullian, these opinions haue been confuted of divines, civilians, and Philosophers: for war is according to lawe though many mischiefs do steigne it: for there doth ensue good of it when rebels are reduced to obedience, and when peace is accorded: and that whose end is good, is also good itself: for the end of war is peace, to which and to common equity without bloodshed, and these injuries of war men do seldom attain. Neither doth Seneca disallow all warres: for he praiseth the warres of Hercules: 
Senec. lib. 1. de benefi.  as to Tertullians saying, he did speak it vpon the consideration of such things which are unjust, and are often done in war, not impeaching that which is usually done of them that be just: to Lactantius& Cyprian answer may be made after the same sort. Notwithstanding I would not haue this poison of war admitted into any commonweal, unless it be to expel an other poison: nor this fury to be let loose, unless it bee to cool the fury of others, or vpon like necessity. But now let us sift the precedent definition of war more narrowly, and consider how war may bee justly maintained on both sides: which both divines& civilians 
Conua. reg. peccat.§. 18. Soto. 5. de just. q. 1. 7. view. relect.  haue thus expounded, saying that it may bee truly and verily just on the one side,& on the other by ignorance, as by the voice of God the Iewes did justly move war against the canaanites, and the canaanites did justly resist the Iewes, not knowing God his will and defending themselves: and therefore it was well said of Pope pus the second to the ambassadors of the king of hungary, who did speak against the Emperour, that he thought the king of hungary would not depart from right and reason, and he knew likewise that the Emperour was a lover of iustice, howsoever now they did discent by war, and that neither of them thought that he had an unjust cause of war. 
come. Pij. 2. lib. 3.  Cicero speaketh fittely to this purpose of the faction of Caesar and Pompey: There was some obscurity, there was variance betwixt two excellent Captaines: many doubted what was the best, many what was expedient for them, many what was decent, some, what was lawful: 
Cice. pro. Marcel.  but the civil law doth attribute the rights of war unto both parties, the things that be possessed by war it giveth to the possessor: captives it maketh bondseruants to both. Now it is convenient to descend into a more particular consideration of the causes of war, which must not be attempted onely vpon an immoderate desire of enlarging dominions or increasing riches. To assault thy neighbours by war( saith Augustine) and to vex people that do thee no hurt through an ambitious desire, what is it else but a great robbery. 
D. August. in. 4. de civitat. Dei.  Therefore the saying of the Barbarian was as barbarous as himself: That is most just in prosperous fortune, which is most forcible, and that it belongeth to a master of a family to keep his own but to a king to contend for that which other men possess. But Attila which did not attend any cause or occasion of war, did therefore worthily deserve the hatred of all men as being an enemy to all men: 
Ior. de or.  but the Turkes do otherwise, 
Tacit. Anali. 15.  who most commonly pretend a cause of warfare: and therfore Soliman when he endeavoured to win the kingdom of Cyprus from the Venetians began to consider what pretences he might make for the taking of arms, because it is not( as one saith) the custom of the Ottomans vpon a rage or heat of mind to enterprise war. 
Natal. come. lib. 1.  It is a beastly part having received no injury, to commit slaughters of men, and depopulations of cities and countries: therefore princes many times pretend causes of war, where in truth there is no cause. And Moyses sought for a good cause of quarreling with the Emorites, though he had a cause absolutely just, namely the commandement of God. For when by virtue of the same commandement he was to make war against the Emorites,& utterly to destroy them, he sent messengers to their king which might signify thus much: I will pass by thy land, we will not turn into thy field nor vineyard, nor drink the water of thy well, wee will keep the right path until we be past thy borders. Therefore let there be a cause of war, and let it be no small cause: for parum a nihilo vix distat. And as Propertius saith: 
Frangit& attollit vires in milite causa,  
Quae, nisi iusta subest, excutit arma pudor.   
just cause of war is the defence of our country, ourselves, our friends, our fellowes,& goods. A defensive war is grounded vpon the lawe of Nature, therefore C. Pontius the captain of the Samnites said well, That war was just unto them, to whom it was necessary, and that their arms are honest which haue no hope of safety but in weapons. Likewise it is a just war which is taken in hand for the recovery of things wrongfully, and by force taken from us by our enemies: 
c. justum. q. 2 August. q. 10. sup. josu. lib. 2.  or that the authors of the injury, at least, may be yielded up into our hands to bee punished, if they did it not by public decree, but by private malice: therfore david after the death of Saule did maintain war against Isboseth the son of Saule, who did go about to usurp the kingdom of Israel, which God by Samuel the Prophet had given unto david: 
2. Reg. c. 2.  and Romulus did therefore fight against the Sabines, because their dictatory Cluitius would not restore the things taken from the romans by violence, nor yield up into his hands them that did wrong. 
Dionis. Halicarn. lib. 3.  And the reuenge of an injury most despitefully done, is likewise a good cause of war: Therefore david did justly wage battle against the King of the Ammonites for the disgrace and abuse offered to his ambassadors: 
2. Regu. c. 20& duob. sequenti.  and that prince hath just cause of war, who pursueth by arms rebelles and such as serve from obedience: 
c. author. it. vs. quaesti. 6. cap. scir. 103. quaest. 8.  for great injury is done to God, and to the prince, when his subiectes will not be ordered, nor ruled by his authority: for there is no power but of God, and he that resisteth power as S. Paul saith, resisteth the ordinance of God 
Ep. ad Roman. c. 13. , and the injury done to a sovereign Magistrate, is done unto God: Who said unto samuel, of whom the people craved an other king: They haue not cast off thee, but me, that I may not reign over them 
1. Reg. c. 8. . And david did wage battle against Seba the son of Bochri, who solicited the people to revolt from david to him 
2. Reg. c. 20. . But because a rebel may not properly be called an enemy, when any such arms are born against rebels, it is not to be called a war, but an exercise of princely jurisdiction, vpon traitorous and disloiall persons 
Innocent. in c. olim 1. de resti. sp. et l. , which was well declared by Pompey, in justifying the war maintained by the Senate against Caesar, and his complices 
Lucan. lib. 2. : 
— nequè enim ista vocari  
Praelia just a decet, patriae said vindicis iram.  And this is confirmed by Ciceroes opinion, who did not think it convenient to sand ambassadors to anthony, not to entreat him by words, but that it were meet to enforce him by arms to raise his siege from Mutina: for he said that they ●ad not now to deal with hannibal an enemy to their common weal, but with a rebellious Citizen 
Cicer. philipp. 5. . And the said Cicero writeth also to Plancus, that peace ought not to be concluded with the Anthonians, who had besieged Brutus at Mutina, calling them shameful theefes, which either ought to crave peace, laying aside their armor, or if they will persist in their fury to obtain it by fight, not by composition 
Cicer. lib. 10. epistol. episto. 6. : Wherefore it was unadvisedly done by the late earl of Essex, in admitting any article of composition with Tyrone, and namely for the restitution of such lands and possessions, to which the Rebels might pretend right before the rebellion: for so vpon every iudgement given against them, they would presently haue returned to weapons. And this slippery revolution of titles, might perhaps haue stirred them to arms, who were in peaceable possession of these lands: so that this would haue been nothing else, but a cutting off of one of the heads of Hydra, that an other might grow: for surely there will always bee some cause and occasion of tumult, if men may bring into question, antiqua et antiquata. The romans would grant nothing at all to Rebelles, because their course was to bee stern to the proud, and rebels in that they are rebels are proud in the highest degree: Neither ought any of their kindred to regard them, but to bee of Seneca his resolution: Si arma quis patriae meae inferret, quidquid de me meruerat perdidit,& refer illi gratiam scelus haberetur 
Senec. lib. ult. de beni. fi. . And exccellent is the saying of Fredericke the second to the Fauentines: Qui dum potest delinquit, dignus est vt quantum potest puniatur 
Sigoni. lib. 18. de re. Itali. . But to return to the causes of war; There be some causes of making war, which wee refer to God, as commanding war; as when the Iewes did refer to God the cause of the war moved against the canaanites 
Deut. 34.4. Exod. 23.29. Num. 33.51. Deut. 20.16.17.18. . And God denounceth irreconcilable war against the Amalekites, and he chargeth his people with perpetual enmity against them 
Exod. 17. . That kind of war( saith Augustine is without all doubt just, which God doth command, with whom there is no iniquity, and who knoweth what ought to bee done to every man, in which action the army is not so much to bee accounted the author of war, as the minister thereof 
August. in Ios. q. 10. . And so the Prophet Esaie said, that it was not necessary for king Ezechias to answer any thing to the ambassadors of the Philistines of the Israelites right in Palestine, but only this, That God would haue that land to bee his peoples 
Esai. 15. : nay, the very Heathen as the Aethiopians did undertake every war by the Oracle of jupiter 
Herodot. lib. 2. . And the spartans by lots and miracles, were moved to make war and to fight with the argives 
Xenoph. 4. Graec. . And Aeneas cometh into italy to maintain war by destinies, and Oracles 
Nat. come. 6. 14. . And the Turkes do always pretend this cause of their war, that it is the commandment of Mahomet, that they should persecute men of diverse Religion: therefore they and the Persians, the one seeming heretical to the other, are in continual war. And the late king of spain Phillip, did pretend this defence of his warres( as some testify) that they were against Infidels, and heretics 
Ferrat. de inimic.§. 7. et 17. . Yet a Doctor of his own sect balthasar Ayala thinketh that war is not to be levied against Infidels, because they be Infidels, although the Emperor or Pope should command it: for their infidelity doth not deprive them of these demesnes, 
Baltas. Ayal. lib. 1. de jur. bel. c. 2.  which they haue by the Law of Nations: for the earth was not given to the faithful only, but to every reasonable creature: for the earth is the lords, and the fullness thereof, the round world and whosoever dwell therein 
Genes. c. 1. Exod. 9.29. Psal. 24.1. . And the Lord maketh his sun to shine both vpon the good and the bad 
Math. 5. in fin. et c. 6. in princip. , and though Nabuchadnezer were an infidel, yet the Lord did give unto him kingdom and principality 
Ierem. 27.6. . But in grounding war vpon divine causes, it is good to be certain of God his will, and not to credit the aequiuocall prophecies and fantasies of men light-headed and possessed of fiery spirits, fit to kindle tumults and uproars: for the warrants of such men are nothing else, but the wrack of a number of men. Such was the oracle of that Scot unto his king, consulting with him of war against England, Ibis, redibis, nunquam in bello moriturus, which fell out afterward to be true, being thus distinguished: Ibis, redibis nunquam in bello moriturus. Such was the warrant of the Eremit, moving the imperial army to fight against the Ligurians 
Carol. Sigon in vit. Andr. Anti. . Such were the fond prophecies of Ball, or according to some Chronicles Wall a priest, who stirred up a rebellious army in the time of king Richard the second 
I. Stow in Rich. 2. . But from warres which displaie the banner, I will pass to leagues which wrap it up: 2. As warres haue been by the Law of Nations maintained, so leagues haue been concluded: for as Cicero saith: Ita bellum suscipiatur vt nihil aliud quàm pax quaesita videatur 
Cicer. 1. office. . Such was the opinion of S. Augustine, as appeareth by the Canon Law: Pacem habere debet voluntas, bellum necessitas: non enim pax quaeritur, vt bellum excitetur, said bellum geritur vt pax acquiratur 
C. 3. 23. q. 1. . And that is expedient for the Conqueror, according to the saying of Euripides: Pacem reduci velle victoria expedit, victo necesse est. But the Conqueror ought to be of that power, that he may be able to make perpetual peace: for it is one of the natural properties of peace to be perpetual: For such was the form of peace, which the romans concluded: romans& Latinorum populis pax esto, dum coelum et terra stationem eandem obtinent 
Dionys. Halicarnas. lib 6. . And so the roman Emperour, and the Persian king did establish peace sine termino 
Procop. 1. lib. de bel. Pers. , in concluding peace, public profit must be especially regarded; which Hanniball therefore termed vinculum maximum 
livi. 36. : and before him Demosthenes termed it so 
Demosth. ad Ep. Phi. . And sometime private profit is respected, when it is a mean or way to public profit: Wherefore Duaren saith pleasantly and fitly: We see very often, that as of a comedy, so of a war, the final conclusion is a marriage 
Duar. c. 3. de rit. nup. : But it is good to make peace, so that there be no fear of future tumult, and unquietness: Therefore Lentulus his counsel was good against the Carthaginians: Quoniam perfidiam non possumus tollere, ante omnia debilitemus potentiam 
Appia. in bel. punic. . And Cato of this matter speaketh to the spaniards: Id ne fiat uno modo caueri potest, si effectum erit ne possitis rebellare 
livi. 34. . And Iphicrates doth well answer the lacedæmonians, promising all faithfulness, and all possible security, that he could not rest vpon any other faith, or other security then this, that it should bee apparent unto him, that they could not do any hurt, though they would. The reason of this sure and wary dealing with enemies, Saint jerom wittilie sheweth: Quis unquam mortalium iuxta viperam securos somnos capit, quae etsi non percutiat, certè sollicitat: Securius igitur est perire non posse, quàm iuxta periculum non perijsse 
Hieron. ep. 47. : Who did ever rest quietly, sleeping near to a Viper, which though shee do not sting, yet shee doth vex? It is therefore more secure to be able to avoid danger, then not to haue perished, where there is hazard of perishing. The effects of peace concluded are diverse, for either weapons are laid aside, or the parties agree vpon condition, or the fight receiveth some restreints, or limitations: for when both parties are weary, both of pains and of expense, this is rather an ending of war, then a concluding of peace; as Tacitus saith in the like case: Bellum magis desierat quàm pax caeperat 
Tac. 4. annal. . And the like matter Cicero, in the like sort censureth: Summum otium said senescentis magis civitatis quàm quiescentis 
Cic. ep. ad Qu. fr. lib. 2. ep. 14. : Wherefore it is good to make and ratify perseverance of peace, because the relics of the disease after the crisis do many times work the ruin and subversion of our health. And according to the rule of physic: The ashes of putrefied bodies will soon inflame the humours 
Hippocr. 6. epid. 2. et Merc. ad 2. de mor. : And therefore Tullus that artificial warrior, in articulating peace with the albans, putteth them in mind, that they ought not so much to settle present peace, as to provide for future agreements 
Dionys. 3. . And worthily doth Isocrates reprove the grecians, because they did not compound, but delay enmities, until such time as one of them might destroy an other 
Isoc. in panegyr. . And excellent is that saying of Cicero: Pax est non in armis positis, at in abiecto omni armorum metu 
Cic. 10. lib. epist. Iam. epist. 6. . But to speak some what of the diversities of making peace, if this clause bee comprehended in the Articles, That one of the parties should preserve the majesty and authority of the other with all kindness and faithfulness. Doctor Baldus termeth this simplicem adhaerentiam 
ball. 5. cons. 106. , whereby( as Romanus expoundeth it) the weaker part doth adhere to the mightier: non vt subditi fiunt, said vt defendantur 
Rom. cons. 417. . This adherence is less then protection: and he that is an herent, or under protection, is not presently under jurisdiction, but is only defensible from injuries and violence, and that by souldiers and armor: Wherefore I wonder at Alciat, when he saith, Faederati latin loquentibus subditi sunt, non sotij 
Alcia. 7. cons. 13. , aut adhaerentes. Neither is it any subiection, though they give somewhat in sign of superiority 
Castal. de imp. q. 109. . Neither were the Carthaginians and Macedonians subject to the romans, though they did pay unto them a yearly tribute. But if a League be once contracted, it bindeth very strongelie and effectually; and that certain ministries or dutiful respects were by reason of such Leagues due and demaundable, may evidently appear by the League contracted betwixt the romans and the lacedæmonians, wherein it was expressed, that they should live according to their own laws, and should not confer any thing in name of tribute, save only certain friendly ministries, and offices 
Strabo lib. ●. . And for the further proof of the witness and strength of this public bonde, this form of League was found engraven in an ancient ston: Batari fratres,& amici populi Romani 
Dio lib. 69. : So that Bodinus is not to be hearkened unto, who thinketh that by fellowship or league contracted betwixt nations, no aid is due unless it bee expressly mentioned 
body. lib. 5. de rep. c. ult. : for Baldus teacheth him otherwise, that there is one body of two cities or two common weals, by reason of friendship concluded: 
ball. cons. 29  but for the better understanding hereof it is to be noted that there be two kindes of society or public friendship: one which is termed {αβγδ}, the other which is name {αβγδ}. 
Suid. Thucyd. 1. Rhod. 11. an. le. 6.  {αβγδ}, is when the parties contracting league are by force of the league to haue the same friends, and the same enemies, which maner of society was much used by the romans: the other is but as it were the moiety or half part of this, as namely when one of the league is to help the other when he suffereth injury: but not when he offereth injury for it is a good rule in the civil law, rei turpis societas non intelligitur: 
l. 5. 7. ubi ball. pro for.  Therfore he that covenanteth to defend a castle or farelet is not bound, if war bee raised through his fault, to whom he made the covenant: 
Alexand. 3. cons. 114.  and Castrensis avoucheth, that this ought to be understood of a necessary, not of a voluntary war: But this is clear and certain in this case, that he that is bound so to defend, is bound to defend by weapons: 
Deci. li. 59. de. reg. jur.& 3. cons. 117.  and he that is bound in such case personally to help an other is much more bound to help him with money 
Alci. 3. consi 2.  yet that must be thought to be onely then required at his hands, when the other can not provide for his own necessities. Now it is to be considered, whether either of the parties may depart from the league. And I think vpon just occasion such a departure may bee made: Faedus non violatur si ab eo disceditur ob rationem justam 
l. 14. 15 16. pro soc. : But this must not bee for a light cause: for light causes are always arising: and all contracts would bee most weak, if for a small and worthless cause it should be broken or not regarded. But a prince may safely depart from the league if some part of the league bee broken by the other party: 
Cagnol. l. 41. Cod. de. trans.  and leagues as all other contracts bee indiuidua 
Deci. Cons. 265. cep. 455. 461. : for there be always exceptions understood in every league as these for example; Nisi causa superueniat: nisi culpa accesserit eius cvi promissio ista fit,& pactio foederis: rebus sic stantibus. Thus we haue spoken of war and peace generally, now it remaineth to discourse of the particular circumstances of these two principal points and moments of a common weal.  
3 Before war be maintained by one prince against an other, it behoveth him that commenceth war to denounce the war solemnly by ambassadors, and by that mean to certify him of his purpose. For this course is prescribed by the lawe of God 
Deut. 20. joseph. 5. antiquitat. Aug. judic. q. 49. . And it was practised by the Grecians, Barbarians, and most of all by the Romaines 
Acrod. lib. 5. Kenop. Ages. Diony. 2. livi. 1. : Whereupon Cicero saith, Nullum bellum justum haberi videtur nisi nuntiatum, nisi indictum, nisi repetitis rebus 
Cice. 1. de offi. n. c. 1. 23. q. 2. : Which saying is cited and auowched in the Canon law 
c. 1. 23. q. 2. . And this is likewise affirmed in the civil law. 
l. 24. de capt.  And therefore it is held by the interpreters of the civil law, Proditoriè agit qui non indictum movet bellum: 
Ias. Bald. l. 5. de just. l. 4. c. de obs. p.  And Varro reporteth, that just warres did cease to bee waged in his time, because they ceased altogether to bee lawfully denounced 
Var. lib. 4. de ling. Lati. . For the ancient romans did not affoarde a triumph to any, unless the war were solemnly proclaimed 
Sigon. de anti. jur. pro vin. : And Alciat accounteth this the law of nations 
Alcia. 14. de si. cor. . And because war is a public contention, if in private causes summons and citations be used, surely in undertaking war, denunciation ought to bee used 
Bald. l. 12. de servi. urb. praed. ; for which cause the romans were in this point so precise, that they did often denounce war when they needed not; even when the law of nations was apparently violated by other nations, so that they might justly haue enforced them, as the rule of the common law is to haue taken notice of their own wrong. In this sort they proclaimed war against the Senones who had slain their ambassadors: against the Illyrians and Tarentines, who had contumeliously abused them 
livi. 12. 20. . And this is noted of them in the case of the Saguntines: Non statim ad arma procurrunt, dum prius more legitimo queri malunt: 
Flor. lib. 2.  So livy reporteth of the Frenchmen; Erant qui extemplo Romam eundum censerent, said vicere seniores vt legati prius mitterentur questum iniurias, postulatumque vt pro jure gentium violato Fauij dederentur: 
livi. lib. 5.  Wherefore Xerxes doth greatly inveigh against the grecians because they did not first assay to end their controversies without weapons: 
Herodot. l. 7  and for the same cause joab is justly reproved in the scripture of the wise woman: 
2. Sam. 20.  neither was he unwise in this point that said: Omnia prius experiri verbis quam armis sapientem decet. Qui scis an quae iubeam sine vi faciat. 
Ter. in Eunuch.  Yea even Tullus a most warlike man is of this opinion: Quae verbis componi non possunt armis decernantur: 
Dionis. li. 3.  So Theseus a notable captain saith in Euripides. Si oratione non persuadeo bellum laudo. Vade, dic Creonti: Theseus amanter repelit a te cadauera: hic primus sermo: si nihil efficis, secundus, vt me armatum expectet. 
Eurip. in sup.  And so Theodorius said truly to Alaricus: Tunc ad arma cum locum apud aduersarium iustitia non potest invenire: And again, Quid opus homini linguasi causam manus agate armata. 
Cassiod. 5. Var. 1. 7.  Thus it is evident that by the lawe of nations war should be denounced.  
4 Somewhat must be spoken of truce, which is thus defined in the civil law: Induciae sunt cum in breue et in presens tempus convenit, ne invicem se lacessant: 
lib. 19. de capt.  And Gellius maketh mention of a truce which was made for an hour onely: 
Gel. li. 1. c. 25.  Vergill calleth truce pacem sequestram, because it sequestreth as it were, and suspendeth war for a time. Varro termeth it, Ferias belly, warres holiday. 
Virgil. 11. Aenei.  In that it is called sequestra pax, it is to bee noted that it is not simply a peace. In the Cannon lawe it is called tregna: it is of this nature, that by it war is not ended but deferred onely, and so it is middle betwixt war and war even as sequestration is middle inter duos altercantes betwixt two parties that are at variance. But peace properly so termed is of another nature, because it is perpetual, and under the name of peace truce is not comprehended, no though truce be concluded for a long time: as the Veientines made a truce during the space of an hundred yeares with the romans: afterward for forty yeares, and after for twenty: as the Tuscanes had a truce first for thirty yeares after for forty, and then peace was concluded. neither is it so much as a league, as may appear by livy: De foedere negatum: induciae in biennium datae Samnitibus. And so he reporteth of the Tuscanes. Pacem faedusquè petierunt, inducias in tringinta annos impetrarunt. 
livi. 1. 2. 4. 9. 10.  So Plutarch reporteth of Pelopidas, that he would not conclude peace with his adversary, but that he granted him truce 
Plut. in Pelop. . Ancharanus doth thus distinguish them there is a time of war, a time of truce, a time of peace 
Anch. cons. 88. . And an other civilian avoucheth truce to be more like to war then to peace 
Corn. 3. cons. 167. . And an other saith fitly, Induciae non interrumpunt hostilitatem, said actus hostiles: 
Aug. l. si vn vis. de pact.  But this must be observed in observing truce, that in time of truce advantage may not be taken either in regard of the place, of the fight, or of other circumstances. Therefore Phillip may seem to haue done unjustly and against the lawe of arms, 
livi. lib. 31.  who having obtained truce for the burying of his dead, did in this time of truce convey his army into safer places. And the D. of Mompensier was likewise guilty of this fault, who having covenanted to yield up a forcelet if help came not within one month, in the time of truce departed from the forcelet, having left it sufficiently fenced 
Guicciar. li. 2 . And it is thought to bee against the lawe of truce to receive soldiers at that time into a town besieged: 
come. Pij. 2. lib. 5.  For it is an usual clause in the concluding of truce: nile nouari securitate pendente: 
Vital. tract. clau.  So Scanderbege doth sharply reprehend the Turkes, who having promised to yield themselves if aid did not come within a certain number of daies, do in the mean season repair the breaches of their walls and munition: 
Scanderb. 8  Neither can Tissafernes bee excused from the violation of truce, who in that time did make himself more strong for war. But Agesilaus is noted to haue done the contrary: 
Corn. Nep. Agesil.  Neither can the act of Belisarius bee justified, who in the time of truce surprised certain towns, out of which the goths departed, howbeit he answered to this objection, that he might well enter into such towns as the goths had left and waiued: but the goths did not wave them; for they departed out of these towns through penury,& want of victuailes 
Procop. l. 2. de bel. Goth. : Now by the civil law he that departeth out of a place, or casteth any thing away being enforced by necessity cannot bee said to leave that thing behind him pro derelicto 
l. 1. 7. pro dere l. l. 8. de je. Rho. : Yet the common law may seem to sway with Belisarius, which extendeth derelictum, both to that which is voluntarily forsaken 
16. Eliz. 138 Dy. . And to that which is waiued and left by necessity 
29. E. 3. 29. 12. E. 4. 5. : yet it cleareth not Belisarius, his act: for during the time of truce no warlike action should haue been enterprised: so that if the goths had left these towns voluntarily, and not by necessity, this had not exempted him from doing apparent wrong.  
5 Because safeconduct is a thing much used amongst nations in politic respect,& therefore is parcel of the law of nations, I may not omit or overpass it. Safeconduct because it is in latin fides publica, doth argue that it may not be granted regularly but of a public person who is an absolute Monarch, or of some public estate or common weal; and in England it hath been used to bee granted by parliament, as appeareth by the statute of Magna charta: Omnes mercatores, nisi ante prohibiti fuerunt, habeant saluum conductum exire,& venire in Angliam ad emendum& vendendum praeterquam in tempore guerrae:& si sint de terra contra nos guerrina, si mercatores nostri in patria illa sint salvi,& salvi sint illi in terra nostra. I mentioned before this word( regularly) because by commission and special warrant he that hath potestatem explicandi ardua: or he that hath causae cognitionem, may grant and affoarde safeconduct for the better performance of his task 
Decia. 3. consi 96. . But safeconduct is to be understood largely, by equity, and without cavils: and therefore if safeconduct be granted to one, to come safely to a place it is intended that he ought safely to depart, and he that hath licence to pass safely may sand safely 
Bar. li. 1. C. de nan. Alex. 2. cons. 46. 5. Alci. 4. 14. : and he to whom safeconductt is granted for himself and his company, may bring with him in his company odious persons, as Iewes and infidels 
Alc. l. cons. 11. 25. Dec. cons. 51. : but fugitives, revolters, rebels and traitors he may not bring with him, for no law of nations nor benefit of common weal belongeth to such, 
8. 38. de pae.  revolters or runagates are by the civil law burnt alive, or else hanged vpon a gibbet. Marcellus and Cato the Censorian did whip them and put them to death 
Plut. in Mar.& Cat. : Others in setting forth of their games and shows did cast them to beasts: others did lay them under Elephants to be trode& torn in pieces, others did with other extremity work their death 
livi. 24. 26 Val. Maxi. 2. c. 7. Front. 4. c. 1. Appi. in bel. Hispan. : neither do I think that safeconduct may extend to men of another nation, then he is of, to whom safeconduct is granted. For example, the fleming, the turk, the English are enemies to the Spaniard, if safeconduct be granted to the Fleming, he may not take Englishmen, or Turkes with him in his company. But safeconduct being granted to the husband must needs extend to the wife, and to such things as be necessary to him ad been esse 
ball. 5. cons. 413. : And to such familie-seruauntes or retinue as to be agreeable and proportionable to his dignity and estate 
Aug. l. 8. de inof. test. : for according to the rule of the civil Law, in personalissimis actibus inseparabiles personae includuntur 
ball. 1. 3. de const. pri. .  
6 I will now speak of captives, and of the rights that belong to them( for misery needeth some solace) by the Law of Nations. A captive as the name importeth is he, who is taken in war, and though he be born of a captive woman, yet is he free, until such time as he be seized into the hands, or to the use of the Lord, and though he be so seized, yet it must needs be that he was born free: for the rule is true: Quae jure gentium acquiruntur, ea non acquiruntur nisi vera interuenerit apprehensio 
l. 3. de acqui. po. ubi Ias. , otherwise he should possess the treasure who possesseth the ground in which it is, yet he doth not possess it, howbeit he knoweth of it, and therefore that rule is not in the Law of Nations true: Si quis habet id quod continet, habet id quod continetur: For in the Law of nations this general maxim holdeth place: Vera et realia non ficta, et verbalia amat ius gentium: yet such a precise seizure is not here ment that every part of him that is taken should be touched, even to the very shirt of a man, as long as he that seizeth hath a will and power to seize: for he that toucheth a mans ear, is in the civil Law held to touch the whole man 
Alc. d. 41. d. l. 3. l. 21. de fur. . Some hold opinion that he is not a captive, until he be brought into the tents of his enemy 
l. 5. de capt. Alex. l. 1. de acquire. po. it. 4. reg. 6. , howsoever it be, it is plain, that captives may not be put to death; as the prophet said to the king of Israel: An quos captiuos abduceres, gladio tuo et arcu tuo eos percuteres? And though bloody Pyrrhus desirous to kill Polyxena did pretend, that lex nulla capto parcit aut poenam impedit: yet Agamemnon answered him well, quod non vetat lex hoc vetat fieri pudor 
Senec. in trow. . To which purpose the other Seneca saith excellently: Augusta innocentia ad legem bonus esse, et latius officiorum patet quàm juris regula, multa exigit pietas, humanitas, liberalitas, iustitia, fides, quae omnia extra publicas tabulas sunt. The Scots therefore are greatly to be commended, who as Buchanan reporteth, though great danger were imminent, yet did not slay their prisoners 
Buchan. lib. 9. . Neither did the English ever( that I read) unless it were once in that notable fight, in which they did utterly destroy the French dominion, who having more prisoners then themselves were, and finding their captives to tend to conspiracy and mutiny, having singled the most noble, did kill the base prisoners 
come. Pi. 2. lib. 6. polydore. 17. . But doubtless the Turkes cruelty was barbarous, who did kill four thousand prisoners, that they might not be a burden or charge unto him 
Ior. lib. 3. . And this fault was committed by Henry the second king of france 
Nat. come. lib. 8. , who did cause certain obstinate prisoners,& persevering in fight to be hanged: a kind of death unfit for captives, who are not so to be punished without great and urgent cause, because it is a point of immanity, and cruelty, bitterly to rage against them which defend their Prince, and their country.  
A captive one may be, and yet not a bondslave: for he can not be a bondslave, unless his Lord will haue him so. There was a ceremony therefore used to make him bondslave, which was called Nexus; And it seemeth that the Praetor had some authority in this matter: which I ground only vpon the last will and military testament of a roman, engraven in ston as Sigonius reporteth, who would haue his villains manumitted by the Praetor 
Car. Sigo. in vit. et trinu. ph. : and sithence eiusdem potestatis est ligare& solvere, I am of opinion therefore, that he had some intermeddling in the making of them villeines. But in the making of them villeines, chains doubtless were used: and therefore Vespasian when he had taken Iosephus prisoner, would needs haue his gives to be broken, not to be loosed, that he might seem never to haue been a bondslave 
joseph. lib. 5. de bel. Iud. . And whereas the Law saith, that such things as are taken of enemies capientium fiunt 
l. 5. de ac. re. do. , it is not meant nolentium: therefore though the power of him that taketh make a captive, yet his will must make a bondslave. But surely the state of captives, if they become bondslaves is very miserable: for they are as it were dejected from their nature, and are in account of Law turned into beasts: And whereas before they were accounted in Law persons now they are accounted things 
ad leg. acquit. 209. Bald. 2. cons. 358. , and therefore of the grecians they are generally called Samata bodies. But I do not think this servitude to be contra naturam: For Aquinas his distinction is not to be reproved, that servitus is á natura, though not secundum primam intentionem, by which we are all made free: yet ex secunda by which God doth punish whom it pleaseth him: but such bondslaves must not be used like beasts, but like men: wherefore the speech of some is intolerable( Seneca reporteth it) who did affirm domino in servum nihil non licere, pictori nihil non pingere 
Sen. 1. contr. 5. . And Plato writeth not well when he saith, 
plate. lib. 6. de leg.  that bondslaves are to be handled roughlie h. Aristotle more truly, that they ought to be handled mildlie 
Arist. 1. polit. . Cicero more iustilie, Meminerimus et aduersus infimos justitiam esse seruandum, Macrobius more modestly, Dominum patremfamilias, servos familiares appellauerunt nostri maiores omnem servis contumeliam detrahentes 
Macrob. 1. saturnal. 11. . Clemens Alexandrinus more compassionatelie: Famulis vtendum tanqum nobis ipsis: sunt enim homines tanquam nos 
Cle. Alex. ult. paed. . Nunquid canes saginabuntur, homines pascentur male? said Diogenes. In Athens there was a Law de iniuria seruili 
Athenae. lib. 6. . amongst the other grecians there was a Law, that bondslaves might depart from their cruel maisters. In some common weals they had licence to purchase lands, and goods, as Athenaeus reporteth, according to the roman Law, as appeareth by Seneca, Dominus praestare debet servo cibarium, vestiarium: est enim servus perpetuus mercenarius 
Senec. lib. 3. de benefic. .  
7 Enough of captives: Now let us not be unmindful of Hostages, which are in state not far distant from captives: Therefore Quinctius did cause the son of Phillip, and the son of Nabis to be lead before his triumphal chariot, though they were but Hostages 
Oros. lib. 4. c. 20. livi. 34. . And the Parthians were wont to say: obsidatus nihil aliud est, quàm servitus 
joseph. lib. 18. antiqu. . By the civil Law they can not make a testament no more then others, which are in the enemies power 
l. 11. qu. test. fa. po. . The definition of Hostages is thus delivered in the civil Law: Obsides sunt qui fidei publicae seruandae causa, principi, aut duci exercitus dantur 
ball. l. 2. c. de pa. qui fidi. . To whom this danger is incident by the Law of Nations; That if promise be not kept to him whose Hostages they be, they may presently be put to death: As may appear by the examples of the Thessalians 
Plut. de cla. mu. , the romans 
livi. 2. Diony. 6. , the goths 
Procop. lib. 1 de bel. Goth. , the Dacians 
Bodin. 1. de rep. c. 10. , the English 
Polyd. lib. 5. 7. 15. .  
8 I may not omit to speak somewhat of the Law, and lawful use of Stratagems, which haue been so much favoured and practised in ancient times, that it hath been generally and peremptorilie affirmed: Nullo discrimine virtutis ac doli prosperi omnes laudari debent bellorum eventus 
Ammian. Marc. lib. 17. . And S. Augustine his authority is urged in the Canon Law: Cum justum bellum susceperis, vtrum aperta pugna, vtrum insidijs vincas nihil ad justitiam interest 
Aug. Ios. q. 10. c. 2. 23. q. 2. : To which agreeth the saying of the Poet: Dolus an virtus quis in host requirat? And counsel hath been given by Oracle, that men must not onely fight by warlike instruments, but by nimbleness of wit 
Pausan. lib. 4. . And Brasidas saith in Thucydides, that the theft of war is most honest. And Silius censuring Fabius using such cunning plots saith: Exin virtuti placuit dolus 
Sili. lib. 15. . But yet great regard is to be had, that all kind of deceit and fraud may not be used& admitted: because Law must be used in dealing with enemies. But the Law admitteth not dolum malum, being the arte boni et aequi. And in concluding any matter with enemies, all captious and scrupulous disputations and interpretations are to be avoided: for as Cicero saith: Leguleiorum est syllabas& apices aucupari,( non militaris simphicitatis 
Cicer. 1. de ora. l. 25. de prob. .) Wherefore Pericles dealt unjustly, who having covenanted with his enemies, that they should be safe si ferrum deponerent, did afterward kill them, because they had about their harneys certain iron buttons: for this word ( ferrum) was to be understood of weapons: as appeareth by that saying of Pyrrhus in Ennius: 
Fronti. lib. 4. c. 7.  Ferro non auro vitam cernamus vtrique. And they of Plataea were unjust, who having promised to restore certain prisoners, did first kill them, and then deliver them 
Thucyd. lib. 2. : as if the carcases of men were captives, and a dead man were a man. unjust was Alexander, who having promised to certain persons a safe departure out of the city, let them go safe out of the city, but having gone a little of their way, he caused them to be slain 
Diod. lib. 17. Polyen. 4. . The Samnites were unjust, who having promised their enemies that they would take away but a ston all along the wall, did take away the foundation-stones& so destroyed the whole wall 
Polyen. 6. . And that roman can not be excused from blame, who when Antiochus had promised him that he should haue half of his ships, caused all his navy to be cut in the midst 
Valer. Max. lib. 7. c. 3. . And the craft of the people of Lacros is to be reproved, who having promised perpetual friendship whilst they should tread vpon that earth, and whilst they should carry on their shoulders their heads, did cast out of their shoes the earth that they had put into them, and removed from their shoulders the heads of garlic which they had privily laid on them, and then they levied war 
Polyb. lib. 6. . For as Cicero, though a pagan saith divinely: Semper in fide quid senseris, non quid dixeris cogitandum 
Cicer. 1. et 3. de office. . Neither is it material that some examples, and namely these abovesaid may be urged for the defence of such sinister dealing, for these few examples make not the Law of nations. Neither in this treatise do we imagine what hath been done of some men, of some nations, in some cases, vpon some occasions. But what hath been done of the most part of the best men of all Nations, vpon grounded aduise, and free election. And surely diuers such great& eminent parsonages haue sometime used such stratagems in good sort, and without breach of national iustice. judith that wise and valiant woman, for her plot intended and practised against Olofernes is commended of diuers, yea even of divines: of Clemens Alexandrinus 
Clemens stromat. , of Ambrose 
Amb. 3. de office. , of jerom 
Hieron. apo. rue. , of Augustine 
Aug. de te. 228. 229. , of other. So Augustus caesar did promise to Cleopatra what she would, if she would effect the death of Antonius 
Dio cassi. lib. 51. . Such snares were laid against Timoleon, against Eumenes, against Lucullus by Mithridates, as Plutarch reporteth. They were assayed by Metellus and Marius, and performed and executed by Sylla against Iugurtha, as sallust avoucheth. They were compassed of the Aetolians against Nobis 
Paus. lib. 8. . And attempted of Perseus against Eumenes 
livi. lib. 42. . And likewise of Decebalus the king of Dacia against trajan 
Zona. Dio. 68. . They were procured lately of Tiruultius against Sforza Duke of milan 
jovi. lib. 11. . And in time past performed by Totilas against the governor of Perusia 
Procop. lib. 3. de bel. Goth. . And in this age of Selymus the Turkish Emperour, against king Aladolus 
Ioui. lib. 17. . And heretofore of a certain Triballian against Amurathes 
Catachond. lib. 1. . many such cunning practises were devised and executed by Annibal that admirable soldier, in whom the two several natures of the fox and the Lion did constell and accord: but he was fully countermated by the romans, of whom therefore he said: video Romanos suos habere Annibales.  
I must conclude with showing the universal and absolute right, advantage, liberty, power, and prerogative of the conqueror. The question hath been heretofore, whether all these things that any way belong to the people subdued may be claimed by the Victorer, or only such things Quae pede praemit, manu tenet. It hath been agreed, that when Alexander did surprise Thebes, he was an universal& no particular possessor of all their rights and inheritances 
Bald. 2. Consi. 202. : And whereas the Chalcedonians being dangerously assaulted by the army of Alcibiades did privily and closely convey their goods for safety unto the Bithinians, Alcibiades having conquered them, made earnest demand of these goods, to be delivered him by the Bithinians 
Xenoph. 1. Graec. : And the romans did demand the bodies of certain kings Demetrius and Mithridates, being overcome and put to flight, of them to whom they fled 
livi. 7. 22. Plut. in luke. App. in Mithr. : but without all doubt these places, and the things of these places which the conquering army doth possess, do justly belong unto the conqueror,& therefore that is said to be the conquerors territory, ubi exercitus eius terret 
Panor. 2. cons. 62. Bald. lib. 3. de. off. praes. : And Alexander might well laugh at Darius, who in the articles of peace would haue yielded these things to Alexander, which he did already possess 
Curt. lib. 4.& 5. : And Hanniball did disdain the roman simplicity( though they did it of great policy) in selling that ground which he did possess with his army 
livi. lib. 26. : And Brasidas the Lacedemonian said well, that that was not the Boetians land, which the Lacedemonian army had seized: 
Thucyd. li. 4  And when a monarch or free city yeeldeth, al the members and inferior parts do yield implicative: wherefore Baldus saith well, A submissione capitis sequitur submissio membrorum& rerum, quia seruiente capite membra servire necesse est. And it is certain, that the ornaments& riches of the people subdued they may take away jure imperatorio, as Cicero saith: 
Cicer. Verr. 3.  So Camillus a most strict observer of the lawe of arms did take the image of juno from Vetos 
livi. lib. 4. : Marcellus carried away many things from Siracuse, 
Plut. in Marc.  and Mummius convyed great store of Church-ornaments out of Achaia 
Zonar. : And Sir francis Drake that sea-flowre of England did( as I haue heard) bring home with him the great golden statue of S. Christopher which he took in one of the Churches of Porto Rico when he sacked it. And though there bee somewhat in scripture 
Dani. c. 5.  spoken against the spoilers of the temple of jerusalem, the cause was for that God had chosen that temple to be his house and the spoilers of it did it in reproach of his majesty. But it is plain that cities surprised may bee sacked: cities yielded vpon condition may not 
livi. lib. 37. : and cities surprised may bee sold, and the walls may be destroyed, and the cities themselves 
Plut. lib. 4. . The walls of Athens were destroyed by the spartans 
Thucyd. li. 1. . The walls of Sparta by the Achaeans 
livi. li. 38. : the walls of jerusalem by the commandement of Pompey 
Tacit lib. 5 : part of the walls of Giscala by Titus 
joseph. 4. belly. Iud. : the walls of Argentina by Attila, which he would needs haue afterward called Polyodopolis, as now having many ways to come unto it. 
Bon. fin. 1. vng. 2  Fredericke was brought in triumph through the walls of milan yielded unto him 
Sigon. lib. 13. de re. It. : Alponsus through the walls of Naples: 
Guicciat. l. 9 ( as Guicciardine reporteth) Iulius the Pope of Rome through the walls of Mirandula: was it because the gates were thrown down? or because such a holy man would not make a profane passage through the gates, but through the walls which are commonly consecrated? or because his ordinary course is to enter by the window, his extraordinary at the wall? or because he wanted the asp and the basilisk to walk vpon, he thought good for that present to trample vpon ston and mortar? as to general subversion of cities after a victory obtained, it is manifest that Thebes was destroyed by the general concord of all the Grecians, because they took part with the Persians 
Diod. li. 15. . livy maketh mention of Alba, Pometia, Corbio, Cortuosa, Contenebra, Satricum, Antipatria, Phaleria, and others, which were so destroyed 
livy. l. 1. 2. 3. 6. 7. 24. 31. 32. : Carthage, had the same fortune, which is said to haue suffered the plough, a ceremony used of the romans in razing of the foundations of a city conquered 
l. 21. qui. mo. vs. am. : the same fortune had jerusalem 
c. 7. dist 76. 1. Mich. 3. , according to the prophesy of Micheas: Sion vt ager arabitur l.   

The eight Chapter.  
That in the laws and constitutions touching cities, corporations, liberties, franchises and immunities, and the good government and administration of them, all nations haue agreed.  
COrporations in the whole course and constitution of them do very much resemble the natural body of man: for as there bee in it great diversity of partes, so is there likewise great distinction in cities and corporations, of mysteries& degrees. In egypt there were in their several corporations diuers sorts and callings of people; Kings, Priests, Warriors, and workmen: which last kind was subdivided into four members, Shipmen, Artificers, Husbandmen, and shepherds, 
Arist. lib. 7. polit. c. 10. Herod. lib. 2. histor. . And as a natural body doth consist of things bodily, and of a soul, which is vnbodilie, so that it consisteth of things merely opposite. So likewise a city or corporation consisteth of multitude and unity, whereof multitude is as the body, unity as the soul, both different in nature. That multitude is as the body of a city needeth no great proof: Yet hear thereof Florus: Cum populus Romanus, Etruscos, Latinos, Sabinosque miscuerit,& vnum ex omnibus sanguinem ducat, corpus fecit ex membris, et ex omnibus vnus est 
Florus. l. 3. c. 18. . hear the opinion of the stoics, comparing the world to a corporation. civitas totius mundi vna est,& omnes homines populares, municipesquè& quoddle armentum vnum compascuo in agro compascens 
Cice. li. 3. de si. Plut. de vi. Alex. : hear also Seneca. Homo homini in maiore civitate civis est,& in adiutorium mutum creatus 
Senec. 1.& 2. de ira. : and that unity is the form and as it were the soul of a corporation may diversely appear Florus saith excellently( for he either could not or would not writ but excellently) Augustus Caesar sapientia sua atque solertia perculsum undique et perturbatum ordinauit imperij corpus. Quodita nunquam haud dubiè coire& consentire. potuisset, nisi unius praesidis mutu quasi anima,& mente regeretur. 
Florus. lib. 4. c. 3.  And Seneca saith wittily: Societas haec nostra lapidum fornicationi simillima, casurae nisi invicem obstarent& sustinerent se lapides; 
Sene. epist. 96.  This our society is like unto an arch of stones, which would soon fall if one ston did not hinder and bear up another. S. Ambrose diuinly: Lex naturae ad omnem nos stringit charitatem, vt alter alteri tanquam unius partes corporis deferamus. And the saying of Cicero, though an heathen is not heathenish. Spurca eorum sententia qui ad se omnia referunt 
Cice. lib. 7 ad Attic. ep. 2. . And both he and S. jerom 
Hieron. ep. 24.  do condemn certain Philosophers, who whilst they think it sufficient to be without all kind of unjustice, and bend themselves wholly to that, that they may not hurt any man, yet offend greatly in this, that they do not seek and endeavour to profit other men, but forsake that part of iustice, whilst they follow the other: from which fault all the rhetoric in the world cannot exempt the cloistered monks and couchant Friers of the Romish liturgy: Claudian speaketh aptly of this matter 
Claudi. 4. cons. Honor. : 
Nonne vides operum quí se pulcherrimus ipse,  
Mundus amore ligat.   
Thus it is evident, that a multitude lawfully& for a politic end assembled is the matter of a corporation, unity the form. Likewise as a natural body hath his diseases, so hath the body politic. wherefore livy his comparison is incomparable. Nulla magna civitas diu quiescere potest: si foris hostem non habet, domi invenit, vt praeualida corpora ab externis causis tuta videntur: said suis ipsa viribus onerantur 
livi. li 30 . And again, Discordia ordinum est venenum urbis huius 
livi. lib. 3. : yet in some things the body natural and a city or corporation do differre: for the natural body is transitory and mortal: but a body politic death not as it is shewed by M. Townsend in the Mayor of Norwitches case. The commonalty is the substance of a corporation: and of them dependeth all the inheritance: for the Mayor and the Sheriffes may die, and be changed, but so can not the commonalty 
21. E. 4. 7. 12 27. 67. may. de Norwich. c. per towns. : which is elegantly avouched by livy speaking in the person of Scipio that worthy man: Si ego morerer mecum expiratura respub. mecum casurum imperium populi Romani esset? ne istud jupiter optimus maximus sinat vrbem auspicato Dijs authoribus in aeternum conditam, fragili huic& mortali corpori aequalem esse: Flaminio, Paulo, Graccho, Posthumio Albino, M. Marcello, T. Quinctio. C. Fuluio, Scipionibus meis, tot, tam praeclaris imperatoribus uno bello absumptis, superstes est populus Romanus eritque mill aliis nunc ferro, nunc morbo morientibus 
Lui. li. 28. . And Tacitus speaketh of this matter pithily though shortly: Principes mortales, aeternae resp. 
Tacit. annal. 3.  And there is an other difference taken in the said case of the Mayor of Norwitch: for a man restraining the hands of an other mans natural body, doth restreigne his body, but if one do imprison the Sheriffes of a city, the commonalty is not imprisoned. By this comparison the nature of a politic body may sufficiently appear. Now I will speak of the incorporating and enfraunchising of citizens which hath been very ancient, as may appear by Tacitus. Conditor nostri Romulus tantum sapientia valuit, vt plerosque populos eódem die hostes, dein cives habuerit: and he sheweth it more particularly, Neque ignoro Iulios Alba, Cornucanos Camerio, Portios Tusculo,& ne vetera scrutemur, Lucania Etruriaque,& omni Italia in senatum accitos. And he giveth a good reason wherefore it should be so: moribus, artibus, affinitatibus nostris mixti aurum& opes suas inferant potius quàm separati habeant: condemning the Lacedemonians& Athenians, who used it not. Quid aliud exitio Lacedaemoniis et Atheniensibus fuit quāquā armis pollerent, nisi qd victos {pro} alienigenis arcebant 
Tacit. lib. 11. annal. : Amongst the romans at the first none were admitted into their city, but such as did inhabit in that part of italy, which was called Latium: afterward it was imparted to the other people of italy, such as dwelled beyond the river Poe, and the Alpes, and the sea. Claudius Caesar bestowed the freedom of the city vpon many barbarous nations: and under these Emperours which were spaniards, Thracians, africans by little& little whole provinces, yea and the whole roman empire was endowed with the freedom and liberties of the city: whereupon that speech was uttered, Romanus ubicunque vicit, habitat: and whereas at the first all nations beside the Grecians were accounted Barbarians, yea even the romans, who afterward were Lords of all, and being Lords did exempt themselves and other nations which they had conquered from such reproach, and then they onely were noted for barbarous who lived not under the roman Empire: 
Herodian. Sparti. Eutrop.  wherefore Rhenus was said to haue two banks, the furthermost of which was allotted to the Barbarians, the nearer to the romans, according to the saying of Claudian: 
O quoties doluit Rhenus, qua barbarus ibat.  
Quod te non geminis frueretur judice ripis.   
And that which Tacitus saith, that the romans did grant unto the Rhemenses, the Lingones, the Bituriges, the Meldinenses, the Xantones,& the Hedui free people of france, the liberties& free use of their city ( the suffrage& giuing voice at the election of Magistrates and Officers only excepted and foreprised) it is more plainly and vnderstandinglie opened by livy in these words: Iam ind morem romans colendi socios, ex quibus alios in civitatem atque aequum ius accepissent, alios in ea fortuna haberent, vt sotij east quàm cives mallent 
livi. lib. 26. . Though Augustus Caesar at the first blossoming of the roman Empire did make some scruple to enfraunchise strangers, and to admit them into the city of Rome: Neither would he bestow the liberties vpon a Frenchman, though earnestly requested by his Empresse Liuia, whom he dearly loved, disallowing the act of C. Caesar his adoptive father, who enfraunchised a whole legion of his French soldiers, and reproved likewise M. Antonius for selling the liberties of the city unto the Sicilians for money 
Tranquil. in vit. August. . Yet his posterity was not so precise, but did abundantly admit strangers: For Antonius pus did enfraunchise all that were subject to the city of Rome, that Rome might be the common country of all Nations 
L. in orb de statu ho. ff. , imitating perhaps Alexander magnus, who accounted the whole world a common city, 
Rom. ad municip. ff.  and his pavilion the tower of the city 
Plut. in Alex. . And severus did grant to the citizens of Alexandria, that they might be Senators of Rome, and that other egyptians should notice free of the city of Rome, unless they were before free men of Alexandria n. 
Plin. lib. 10. epist.  The helvetians did bestow the liberties of their city vpon Lewis the eleventh, and other kings of france 
Bodin. lib. 1. de rep. c. 6. . And Artaxerxes the king of the Persians did grant such liberties to the whole family of the Pelopidae 
Plut. in pelopi. . So the Athenians did make free of their city Euagoras king of Cyprus, Dionysius the tyrant of Sicelie, Antigonus and Demetrius the kings of Asia, yea even all the Rhodians 
livius : which the Rhodians requited with like courtesy, which was nothing else but a comburgeosie, such as Bodinus 
Bodin. ubi supr.  reporteth to haue been made betwixt them of valois, and certain towneships of the helvetians: Betwixt the men of barn, and them of Friburge: Betwixt them of Geneua,& them of barn. The nature of which comburgeosie is, that there should be mutual community of their cities, and mutual league of friendship betwixt them; And if any of these so leagued in society should forsake their city, and come to the city of them with whom they were in league, they should be ipso facto Citizens without any special enfraunchisement, enroulment, cooptation, or any other circumstance: before which time they were not subject to the command and laws of that city, but were only cives honorarij, as Hercules and Alexander magnus were of Corinth. Such a league of society as seemeth by the year book to haue been contracted betwixt the Citizens of lincoln, and them of the town of Derbie, that they of lincoln should be quiter from murage, pontage, custom, and tolle, within the village of Derbie, for all kind of merchandise 
48. E. 3. 17. . This was the difference betwixt veri and honorarij cives: the former were subject to the laws, orders, and charges of the city: the other were not. Plutarch 
Plut. in Solon.  wondereth at Solon, in that he made a Law, that all strangers should be barred from the liberties of the city of Athens, except it were such as were in exile: but indeed he perceived not Solons meaning, being a man of deeper reach then Plutarch, as also was Polybius, and Thucydides, and Dionysius, of Halicarnassus amongst the grecians his countrymen, whom notwithstanding in learning, wit, and eloquence he exceeded: for Solon his purpose was in the making of that Law, that none should enjoy the liberties of the city, but such as should be bound and subject to the laws of the city. And there was likewise an other difference betwixt veri and honorarij cives: for they which were veri cives did loose the liberties of the city of Rome, whensoever they did purchase the freedom of any other city: Which may appear by this, that though Pomponius Atticus being born in the city of Rome, was a citizen of Rome, and more then that, being a Senators son, was eques Romanus, who was therefore called Atticus, because he had the Athenians in such reverence and estimation( a man of great birth: for three Emperours do refer their original to him, 
Senec. in epist. ad Lucil. ) yet this man could not bee made a citizen of Athens, least( as Cornelius Nepos reporteth the plain truth 
Senec. in epist. ad Lucil. ) he should loose his freedom of the city of Rome. But as to them which were honorarij cives, 
Cornel. Nep. in vit. Attic.  if they were enfraunchised of a hundred cities, yet they could not loose their freedom of any. In England not Cities only admit others to their liberties, but very Societies of Students; as namely the houses of Court, and to mine own knowledge, the worthy society of Graies inn, to which be admitted such a number of excellent noble men, great divines, surpassing gentlemen, whereof some haue sued and been desirous to be admitted: other some haue rather been called, then ordinarily consorted, for their pre-eminence and worth, according to the rule of Salomon: As is the fining pot for silver, and the furnace for gold, so is every man according to his dignity. I pray God this fining pot may still continue her silver of Learning and Law. I beseech him likewise that this furnace of gold, may still sever the gold from the dross, that is religion and loyalty, from paganism and papism: which hitherto, the Lord be praised, it hath done. But to return to my purpose of handling the nature and properties of Cities and Corporations, Though in the generalty of admittance all common weals haue accorded, yet in the special maner of admittance they haue dissented and varied: For in Athens they could not bestow their franchise vpon any without the suffrage and voice of a thousand citizens at the least 
Demosth. contr. Eub●lid. . But in such places and regions, which by reason of the barrenness of the soil, or by reason of the distemperature of the air, are not very well habitable, not only the originarie inhabitants, but even strangers and aliens are forbidden by the Rulers of the places to depart out of them: As namely in Moscouia 
Sigis. in hist. Moscho. , Tartaria, and Aethiopia 
Francisc. Aluares. in hist. Aethiop. : But amongst the Venetians and Rhagusians none can be admitted to their cities, unless it be for a great sum of money, or some principal desert. But now sithence we haue spoken sufficiently of Corporations in general, let us examine the first foundation and beginning of guilds and fraternities, which as Corporations do support the good estate of a realm; so they do preserve the good estate of Corporations. These Fraternities are derived of the greek word {αβγδ}, which is to be interpnted a well, or pit: for in drinking at one pit or well society was at the first contracted: thence is derived {αβγδ} fraternity. So likewise Pagi, towneships, are derived of the Doricke word {αβγδ}, which signifieth a fountain, and in the Atticall dialect is {αβγδ}. By the meeting together at the first at one water or fountain grew love betwixt man and wife, then betwixt brethren and sisters, then betwixt vncles and nephews, then grew affinity: All which would haue been cold, if there had not been corporations, colleges, guilds, fraternities, and societies erected and established. By the common Law, no Corporations can be made but by the king, yet his highnes may deputy this authority to an other, for so it cometh originally from the king: howsoever Mast. Keble his opinion is, that a Corporation must be made by the kings express and immediate words 
2. H. 7. 13. . But 22. Edwardi 4. and 20. Hen. 7. the opinion of red is to the contrary 
22. E. 4. grants 30. 20. H. 7. 7. , and both Mast. Fitzherbert, and Mast. brook 
Br. Patents 44.  abridging the case, 
Fitzherb. grants 36.  are in this contrary to Mast. Keble: And so is the opinion of Choke and Brian, that if before the dissolution of Abbeys, the king had licensed one to make a Chaunterie for a chaunterie Priest, and to give unto him and his successors certain land, this had been a good Corporation 
21. E. 4. 56. . But to all unlawful Gorporations, all gifts, grants, fines, and feoffments are made void by the statute of 23. Hen. 8. cap. 10. The first Lawmakers and founders of common weals, at the first did account no foundation more stable to support a common weal then societies and fraternities. For Numa Pompilius the king of the romans did ordain certain guilds of workmen and merchants, and did bind them by solemn sacrifices and feasts, which might be at certain set daies celebrated to preserve love, and friendship amongst the people, that they might with more ioy and comfort proceed in their private and public affairs 
Plut. in Num. Dionys. Halicar. lib. 2. : And this he seemeth to haue done by Solons example, who made fraternities of all sorts of men, and permitted them to make laws touching their fraternities, so they were not contrary to the Law publicly received 
Plut. in Solon. . But Lycurgus did not prescribe certain feasts to be observed, but continual meetings and comessations, that friendship might not at any time be intermitted. In other cities of Greece, societies called {αβγδ}, and throughout all italy sodalitia were observed. To this end and purpose the Cretensians of all ages, orders, and sex, did banquet together in public place 
Arist. in polit. . And in the famous city of London, there is annual and solemn observation of their feasts in every guild, which mightily preserveth the wealth, tranquilitie, and flourishing estate of that city. Neither is this custom dissonant from God his own ordinance in the jewish common weal, who appointed certain feasts and sacrifices to be observed of the Iewes, that religion toward God, and friendship amongst men might bee maintained 
number. 1. Leuit. 23. . But as to the making of private laws by such guilds and fraternities, Solons Law abovesaid hath been observed almost of all common weals: But the Statute of 15. Henr. 6. giveth somewhat a larger scope to guilds and fraternities in these words: guilds, and fraternities, and companies incorporate shall not make, nor use any ordinance, which may be to the diminution of the kings franchise, or of other franchises, or against the common profit of the people, unless it be first discussed by the Iustices of peace, or the chief governors of the village, and before them entred of record &c. But when I speak of colleges, companies, meetings, feastinges, and assemblies, I do with the main force of my hart exclude unlawful societies, conventicles, and secret meetings of malcontents, fantastical, and private humored persons: But to colleges, fraternities, and companies erected and created by Law, I see no reason but that lands and yearly maintenance may be given and allowed unto them: yet not without the Princes permission, who for some special causes foreseen may stop and hinder such donations: And therefore wisely by diuers Statutes in this realm is remedy provided against this, and a writ of Ad quod damnum devised 
Statut. de Religios. 18. E. 3. pro clero. cap. 3. 15. R. 2. cap. 5. . Antonius the Emperour did first of all permit legacies and donations to bee made to colleges and companies, excepting the colleges of the Iewes, whom notwithstanding he suffered to meet together, and to haue their synagogues for religious use 
L. 1. de Iud. C. . Alexander magnus did bestow upon his city Alexandria, built at the seauen-folde mouth of Nilus, many great privileges, franchises, and immunities 
joseph. lib. 3. bel. Iud. . So francis the first, being the founder of that city which standeth at the mouth of Sequana, gave great immunity to such as should inhabit it 
Bodin. lib. 1. de republ. c. 6. . And so diverse of our kings of England haue bestowed many liberties franchises and benefits vpon several cities, which M. cambden hath very profitably& very learnedly amongst other things in their due places set down, whom I need not further commend to my country-men of England, to whom by his great worth and desert he is more dear and precious.  Quàm si illum Veneris commendet epistola Marti. 
But I will further proceed in showing the great prerogatives granted by princes and other supreme estates to cities and corporations: In all ages and all common weals cities and corporations haue not only had their courts, folkemote, and the like, but even common councils( as they are commonly termed) and public meetings for the general good of the corporations. For as great profit doth arise by such societies and meetings: so nothing doth more debilitate and weaken the state of a common weal then the taking away of such councils: therefore the romans, when they had overcome Macedonia, because they would make the estate of it weak and impuissant, they did utterly forbid all common councils, and public meetings: so they did when they had overcome the Achaeans: Memmius the consul( saith livy) did dissolve all the common councils of the particular nations of Achaia, and of the Phocensians and Baeotians, and the other partes of Greece 
livi. lib. 35 : But when these regions and provinces were sufficiently quieted and soundly knit to the body of the roman Empire: then( as Strabo reporteth) their ancient councils were restored unto them: but the romans did never alter the liberties of any city unless they were abused to their hurt, as appeareth by the words of Florus: Critolaus causa belly, qui libertate a romans data aduersus ipsos vsus est 
Flor. lib. 2. : Neither were the liberties of the Aetolians impeached until they revolted to Antiochus, as justin sheweth: Offensi Aetóli, quód non ex arbitrio eorum Macedonia quoque adempta Phillippo,& data sibi in praemium belly esset, Antiochum in Romana bella impellunt 
justin. lib. 3. . And such abuses many times happen in cities: for as livy that excellent writer, in wit diligence and history, matched by none: in wisdom and gravity by very few, in piety overcome onely of one of the heathens, 
Varro.  and but of one in eloquence well avoucheth: 
Cicero.  Nulla est civitas quae non et improbos cives aliquando,& imperitam multitudinem semper habeat: 
livi. lib. 45.  but as they did favour lawful and convenient councils, so unlawful and secret conventicles they did greatly abhor: wherefore the nocturnal meeting at the sacrifice of Bacchus was justly abiudicated and disannulled by the whole Senate:& the conventicle of the black-religioned Brownists by the L. Archbishop of canterbury,& the high Commissioners, who though a greater number of them were women& pretended themselves to be harmless,& unapt to do hurt; yet as livy saith; A nullo non genere summum periculum est, si coetus & consilia et secretas consultationes essesinas 
livi. lib. 34. : And this ought especially to be feared and prevented, when contumelious contumacy is veiled with the shadow of religion and reformation: for as the same livy saith again very well: Nihil in speciem fallacius praua religione, ubi deorum numen praetenditur sceleribus, subit animum timor 
livi. li 1. 39. : O lord how long shall satan abuse the souls created by thee with a vain sophistry in stead of true religion! and such societies, and such families, whether of love, or of lust, I can not well define, which delight in latebris, are worthy to be sent ad carceres, that they may there live in tenebris: for it is fit to sand corrupt humors, which ouerloden and pester the body in latrinam: For surely such Fanatickes may do as great hurt in a common weal as the Pythagoreans did in Greece and italy, who pretending themselves to bee professors of wisdom did bring a great number to the admiration and imitation of them: and finding such strength in the weakness of the multitude, they began to plant their ram and set their force against kingdoms& common weals, and had thought utterly to haue subverted them, but their companies were quickly dispersed, and the greatest parte of these companions was destroyed by fire and sword 
Polyb. li. 3. : Now to speak somewhat of the liberties of a city. S. Paul when he was by the commandement of the magistrates apprehended, being accused that he troubled the public tranquilitie by seditious assemblies, professing himself to bee a citizen of Rome he appealed to Caesar 
Act. 25. v. 11  though he were by nation a Cilician, by blood an Israelite, by tribe a Beniaminite, yet because his father had been a citizen of Rome: 
Acto. 22. v. 28.  the liberties were afforded unto him: he likewise, when he was commanded to be scourged pleaded for himself that he was a roman 
ibid. v. 25. . But because the abundance of liberties of all the cities of Asia, Africke and Europa, are sufficiently known, I will not stay any longer vpon this point, but will pass to matters of greater importance, and more difficulty.   

The ninth Chapter.  
That the disting●ishing of demesnes,& the difference of the degrees& callings of men, is according to the law of nations.  
COnfusion breedeth always contention, partition peace, according to the old proverb, divide et impera: for which cause our ancestors did think it best to distinguish their dominions and inheritances by lots and boundaries, as Abraham& Lot in Palestine, Masinissa and the Carthaginians in Numidia and Mauritania, the romans and Nolanes in italy, the romans and Carthaginians in spain and sicily, the Emperour Valens and the goths in Missia, and the regions on this side Danubius,& through the whole tract of the roman Empire was a partition made by Theodosius betwixt his son Archadius whom he prefected over Bizance and all the oriental partes: and his other son Honorius, to whom he allotted room, and all the occidental countries: and so Darius would haue made a partition with Alexander of the whole world, that the one of them should haue all on the one side of Euphrates: the other all on the other side, yet in the first age and infancy of the world this kind of partition was unused and unknown, as may appear by these authorities first of virgil, who saith: 
Ne signare quidem aut partiri limit campum  
Fas erat. 
Virgi. george. 1.   And of Tibullus: 
non fixus in agris  
Qui regeret certis finibus arua lapis 
Tibul. 1. Elegi 3. .  And that of Seneca: 
Nullus in campo sacer  
Diuisit agros arbiter populis lapis 
Senec. in Hippoli. act. 2. .  yet the case was altered when ovid writ thus: 
Gentibus est aliis tellus data limit certo:  
Romanae spatium est urbis& orbis idem 
ovid. 2. Fasto. .  And vpon good reason was it altered, for as Boetius saith well: Dimensi●nes terrarum, terminis positis vagantibus, ac discordantibus populis pacis vtilia praestiterunt 
Boeti. in geomet. : And the great use of limits and boundaries Plutarch sheweth, when he condemneth the unsatiable covetousness and illimited encroachment or invasion of Romulus very wittily: Noluit Romulus mensurâ proprij agri prodere mensuram alieni siquidem virium compedes terminos esse novit seruarentur,& iniuriae judicium, si non seruarentur 
Plut. in Num.& pr. R. 15. . And this was the cause that Numa Pompilius the king of the romans did cause as well a public perambulation to be made throughout his whole kingdom as private limitations& bounds betwixt party& party, and for the more solemn and effectual confirmation and establishing of this course he did dedicate a chapel vpon the top of the Tarpeian hill unto Terminus, and this idol was made of ston 
Plut. in Num. : He was set in a chapel as not fit to be removed: he was made of ston as hard to be removed: he was placed vpon a high rock as not possible to bee removed: and to this idol nothing was sacrificed but cakes, pulse, and the first fruits of the field: the meaning doubtless of Numa was good, if it had not been signified,& set forth by an evil mean. For to make him immovable was to good purpose and agreeable to the truth of divine iustice: Wherefore solomon saith: that which also is commanded in deuteronomy: Thou shalt not remove the ancient bounds which thy fathers haue made 
Deut. 27.17 Prou. 22. v 28.& 23. v. 10. : but the manner of dividing lands& dominions according to the custom of nations is fully set down by M. Littleton, though applied to another purpose,& it is fiue-fold: 1. By setting out an equal rate of the lands to be divided. 2. By the agreement of friends or intermediation of others. 3. By casting lots. 4. By writ de partitione facienda at the common law,& the action de herciscunda familia at the civil law. 5. By making an unequal partition equal, by a foreign reservation 
Littlet. lib. 3. c. 1. . Distinctions likewise of the degrees of men hath been in all nations, in all ages established observed and used. For the advancing of noble men above them of less note; and the preferring of the gentleman before the yeoman, and peasant is very ancient, and hath been uniformly reteigned: neither is it to bee marveled at, for nature herself hath taught the nations her schollers this lesson. travail through all her kingdom, that is through the whole world, you shall find this difference in force and of great validity. Consider the situation of the celestial orbs, and ye shall note, that the fiery heaven is placed above the crystalline, as more worthy, both these above the firmament, the firmament above the other spheres as surpassing them: mark the birds of the air, ye shall perceive that the Eagle, the phoenix, and the Parott hold pre-eminence above the rest. look vpon the riuers, ye shall observe Euphrates in his form and compass of his stream to be more excellent then Ganges: Ganges better then Danubius, Danubius better then Tagus, Tagus then Padus, Padus then Tempse, Tempse then Seuerne: Note the fishes of the sea: yea shall find these to haue place above the rest the Whale, the Dolphin, the Sturgeon, the Salmon, and the Conger. Cast an eye vpon the beasts of the field, the lions, the Pardes, the Elephants, and Panthers do excel: look into the bowels& matrice of the earth, ye shall haue gold, silver, brass, to exceed all other metals: search into the inwards and the very closet of nature, the best of the grosser stones are the Loadstone, the marble, and the Alabaster: amongst the precious stones, the Diamond, the Topas, the Turkoise, the Smaragde, the sapphire& the Chrysolite. Wherefore the difference of estates,& degrees is well limited and expressed by the custom of nations& the discrepance betwixt noble and ignoble well constituted, which first I will generally handle,& as it were opening the signification of the words: and afterward more fully& particularly as drawing it in a map by pencil. This world nobilis if it be generally taken, extendeth as well to gentlemen as to them which by pre-eminence we call noble; for nobilis is quasi noscibilis either for his stock, or for virtue: the nobility of stock or blood hath been more observed of the Hebrews& Grecians; of virtue by the romans and them of the northern regions:& so he hath been accounted ignoble, who hath not been known, nor noted for some eminency,& rareness, according to the verse: 
Solus ubi in siluis Italis ignobilis aeuum,  
Exigerit:   
amongst the grecians at the first, they only were accounted noble, who could derive their pedigrees from kings or princes, or some other great and famous men; as from Hercules, Cecrops, Aeacus, and the like, or such as by public decree, and singular demerit had obtained a crown of gold, or some statue to be erected for them: And amongst the Iewes, they only were accounted noble, which descended from the stock of Aaron, or the kings of Israell and Iuda. But the romans were far otherwise minded: for as sallust saith, Hostem ferire, murum ascendere, conspici dum tale facinus facerent properabant, eas divitias, eamquè bonam famam magnam nobilitatem putabant 
sallust. in jugurth. . And an other roman saith, Genus qui laudat suum aliena laudat 
Senec. . And an other namely ovid: Nam genus et proauos& quae non fecimus ipsi vix ea nostra voco, 
ovid. Metamorph. lib. 13.  which golden saying so much pleased that worthy and noble knight Sir Philip Sidney, Learninges champion, Englands miracle, Europes favourite, of whom the words of Horace may be verified, if ever they might be truly pronounced of any: Dignum laud virum Musa vetat mori. I say they so much pleased him, that he used them for a mot: 
ovid.  And I know not whether ovid his invention, or Sir Phillippes election be more to be commended: And nobility without virtue and merit was accounted as an image without life: For sallust saith, Reliqui sunt inertissimi nobiles, in quibus sicut in statua praeter nomen nihil est additamenti: for what difference was there betwixt Ciceroes statue, and Ciceroes drunken son, sithence both of them had the name, neither of them the qualities of Cicero. But as well the grecians as the romans did agree in this, that for the rewarding of virtue, and the honouring of desert, and the animating of others, they did allow scutcheons and Armorie, Crestes and Cognisances to men of special note: Which our ancestors( saith Plinie) the representations of their dead fathers were proposed to view, their countenances were resembled and engrailed in their Armorie, that there might be some ornaments to deck and beautify the celebration of public funeral.  
Now to speak more particularly of the degrees of men, according to the Law of Nations: The degrees of Citizens are to be understood these, which make a difference by state or place, not by sex as Bodinus grosselie imagineth 
Bodin. lib. 3. de rep. c. 8. : for if there were none but males in a city, yet it should be a city: otherwise how was Rome a city before the entermariage of that people with the Sabine dames 
livi. lib. 1. . By the customs of Perusia and Florence every one that followeth the standard, and is initiated& entred into military profession doth presently of a yeoman become a gentleman 
Bartol. in lib. 1. de dignit. ciu. . But in france as Bodinus reporteth, gentry is not gained by undertaking service in war, but by continuing in the same: if their issue or posterity do also manage arms, their issue and posterity are reputed gentlemen 
Bodin. lib. 3. de repub. c. 8. . But the Venetians do measure gentry and nobility by Senatorie state: yet I take it to be after the maner of the ancient romans, who did not account any Equitem Romanum, which was not a Senators son: yet many mere soldiers were admitted of the Senate: Which facility of the romans in bestowing dignities, did afterwards turn to their great danger and molestation: for C. Marius was onely a soldier, having spent his very Consulships, even six Consulships in warres, and the seventh should not haue been unlike to the rest, if God had not prevented him by death: and continually before that time he was employed in war, either under Scipio the son of Paulus Aemilius, or some other great captain: But this man being more in conuaie then counsel, did more hurt then profit the roman common weal. So did Iulius Caesar: so did M. Antonius, though these later were somewhat more then mere souldiers. But amongst the egyptians none could be souldiers, but the Calasyri, and many yeares after when it was under the dominion of the Sultanes, the Memmeluci, who therefore had special immunities& liberties granted unto them: but a mere soldier amongst the ancient romans, though he were of excellent desert, yet was accounted but as a plebeian, and not noble, which may easily appear by the speech of L. Siccius Dentalus made in the Senate house, who boasted that he had served in war forty yeares for his country, that he had fought in an hundred and twenty battailes, that he had received forty and five wounds, and twelve of them in one day, and all of them aduerso corpore encountering the enemy face to face, that he had purchased fourteen cibicall crownes, three obsidionall, fourscore and three golden chains, a hundred and three-score golden bracelets, ten goodly spears, five and twenty faire and costly arming saddles 
Dionys. Halycar. : Yet this man having no other means to attain to gentry and nobility, was accounted of them in the number of ignoble persons 
sallust. in bel. jugurth. loq. de Mar. . Augustus Caesar a notable wise Emperour did supply the want of Senators with rich men 
Tranquil. in August. , though not very wise, because he perceived that the notable order of Senators, which stood much vpon cost and expense,( whereupon I am persuaded these words issued from him, Duas habeo superbas filias, Iuliam et Rempub. 
Macrob. in Saturnal. ) would otherwise utterly fall to the ground: But in other respects he did wholly favour such as virtue had ennobled. For Aemilius Scaurus, though he were a poor man( poverty is no dishonesty) yet he was noble 
Valer. Max. lib. 2. , for sometime nobility is severed from riches: Therefore Tacitus saith of Cassius, and Syllanus: Alter opibus vetustis, alter generis claritudine excellebat: yet a man may be noble, and very rich, as tully saith of Roscius, That he was, nobilitate et pecunia municipij facile primus. But it is good to be known whether base artificers are to be enseated, and bestowed in places of worth and credite. Xenophon reporteth that amongst the egyptians, Scythians, Persians, lacedæmonians, Corinthians, they which did use base and mechanical trades were excluded from places of account, and were accounted ignoble 
Xenoph. in oecumen. . Aristotle likewise writeth, that amongst the thebans it was a Law, that no man could be admitted to place of honor, unless he had left off merchandise by the space of ten yeares before 
Aristo. in polit. . And the romans followed them in this: for as livy saith, Quaestus omnis indecorus patribus visus est. And Hippolytus a collibus writeth, that it hath been generally received, that whosoever is a gentleman, or possessed of an honourable estate, beginneth presently to be ignoble by using merchandise, unless it be otherwise provided by the Statutes of some particular provinces or Cities: as by the Statutes of Venice, of Florence, of Genoa, of Luca, and of London, where many of their Senators, magnificoes, clarissimoes, illustrissimoes are Merchants 
Hippolyt. a collib. in lib. de princip. . And it is the rule of a divine, moral, and politic writer, that husbandmen, carpenters, potters, carvers either in wood or ston, and the like workmen, are wholly to be debarred from honourable or judicial places 
Ecclesi. c. 38. . And by the imperial laws, Merchants may not be advanced to any honourable estate 
L. ne quis de dignit. C. L. si cohortat. de cohort. L. humil. de incest. C. : neither might they haue any regiment of souldiers 
L. 1. negotiator. ne milit. C. . And Plato 
In lib. de legi. , Aristotle 
Lib. 7. polit. c. 9.  and Apollonius 
Philostrat. , do hold merchandizing to be an enemy to virtue. Neither will Ciceroes distinction be of any force against them, where he saith: Mercatura si tenuis est, sordida putanda est: si magna, et copiosa, multa undique apportans, multisque sine vanitate impartiens, non est admodum vituperanda 
Cicer. lib. 1. office. : For though his commendation of merchandizing bee not very great: yet his opinion in this is not greatly good: for Maius et minus non variant speciem. And the ironical saying of the pirate to Alexander, was a confutation of this distinction 
Cicer. 3. de repub. , who told him in plain terms, That because he did rob on the Sea with one small pinnasse, he was accounted a pirate: but because Alexander did the same with many great Gallies, therefore he was termed the governor of a fleet: For as Lucan saith well: Facinus quos inquinat aequat. And the same Lucan calleth Alexander 
Luca. lib. 10 , Foelicem predonem, a fortunate Robber: And this answer of the pirate to Alexander is liked of Ciceto himself 
Cicer. 3. de rep. , of S. Augustine 
D. August. lib. 4. de civitat. dei. , and Alciat 
Alci. 1. consi. 1. .  
Likewise it hath been a question sometime sifted, whether he that useth husbandry may properly, and in strict reason bee accounted a Gentleman. In the common Law wee haue this rule, that where a Gentleman is sued by the name of Husbandman, he may say, that he is a gentleman, and demand iudgement of the writ, without saying that he is no husbandman: for though a gentleman may be an husbandman by the said Law, yet he ought to be sued by his more worthy addition 
14. H. 6. 15. 1. E. 4. 2. 21. H. 6. 55. 12. H. 6. 8. . Neither doth our Law in this dissent from the practise of other Nations. For Cyrus did very often boast of his labour, and industry in matters of husbandry 
Cicer. lib. de senect. . And these noble romans, Serranus, Curius, Cincinnatus, Torquatus, and Cato, are commended of Historians and others, for this that they did establish the safety of the common weal by their hands, which were worn and grown rough by the plough, and labour of husbandry 
Valer. Max. Varro. Cicer. livi. Florus. . In Iewrie and egypt how much it hath been esteemed may appear by this, that neither could pharaoh pleasure jacob more to his contentment: Neither could joseph procure a greater pleasure unto him, then the meadow ground, and pasturage of Gozan, in which he enjoyed the comfort of his age. In Scythia, Arabia, Parthia, Arcadia, and other places; as India, Thracia, Mesopotamia, Sicilia, &c. husbandry hath been greatly practised, and in other Nations not so much addicted to husbandry, exceedingly praised. divines haue in all ages& countries possessed the reputation, either of gentlemen, or of reverend, right reverend worshipful, and right worshipful men, and that vpon good reason, which by and by,( God giuing leave) I will demonstrate. Whether Phisitians may bear any of these aforesaid titles or no, it hath been in all ages questioned, in some debated, in this decided: Though amongst the ancient romans, physic was accounted base and sordid by the space of six hundred yeares 
L. Thais§ Lucius de fidei commiss. : yet about the imperial time it was received into the city 
L. quidem C. de decuri. , and highly esteemed. But the Hebrewes and grecians did always make great account of the professors of that science, and so did other nations also, when the Arabians first of all had severed Surgeans, Emperickes, and ignorant Apothecaries from physicians: But let their account be great in a city or common weal, yet they must give place to the profession of the Law, as being a princely discipline, the center of common weals, and the science of government, as I haue at large shewed in the first Chapter of my direction to the study of the Law: And this even Philosophers haue adiudged 
plate. in Gorg. Aristo. lib. 1. polit. c. ult. .  
But now whether mere Grammarians and Rhetoricians, I mean sole& single professors of these Artes may challenge to themselves the title of gentry and worship, it hath very much been doubted. Cicero saith of rhetoricians: Rhetores M. Crasso, et Domitio Censoribus, claudere ludum impudentiae jussi 
Cicer. lib. 3. de orat. . But after his time it was received into the city, and obtained many great immunities: yea even these which taught boyes their Alphabet, or first letters were so rewarded 
l. 6. de exe. tut. l. ult. in fi. de mu. et ho. l. 2. p. ult. de vac. mu. : Vaspatian granted and allowed to Rhetoricians great franchises, and privileges, 
Dio. Cassi. in Vespa. Gelli. lib. 1. c. 11.  which made rhetoric to flourish in that common weal in these times: 
Tacit. lib. 11 annal.  For as Tacitus saith well, Sublatis studiorum pretijs, etiam studia peritura, vt minus decora: and before him Plato affirmed it: Artes illuc confluunt, ubi ipsarum pretium est 
Plato in maior. Hippi. . And how much it flourished in other common weals may appear in that Demosthenes, Aristotle, Demetrius Phalereus, eloquent and wise men were credited with the honor of ambassage, and such haue been in all ages well esteemed, unless it were that they haue miscarried at the hands of some covetous churls, and pennie-fathers, or vainglorious pictures of mankind, which as they measure a mans strength by his stature, so they way his inward ability by the outward apparel of his body, whose childish humour Iuuenall gibingly toucheth.  
didicit iam dives avarus  
Tantùm admirari, tantùm laudare disertos  
Vt pueri Iunonis auem.  
This is to esteem a book by the cover, a horse by the his trappinges and caparison, and a Greyhound by the collar: O quantum est in rebus inane! When will worldlings judge uprightly of things! never: for the blind cannot judge of colours, r: and M. Brutus was wont to call such gaudy,& garish fellows, which were rather fine by the tailors needle, then the university learning, aureas pecudes.  
having particularly and severally spoken, and as it were by way of anatomy, of the diuers callings, estates, and degrees of men, it is good to marshall the callings and degrees in order as well as I can conceive them. In the first place must bee reposed the person of the king, who as the image of God agreeth with every man, as the lieutenant of God with the magistrate, as the anointed of God to rule& govern with neither of the former, but with God only, whose pattern he is: after the king if we will discourse according to reason& ancient example the chiefest of the clergy are to be ranged: for as Iosephus noteth, the Hebrews had but 2. sorts of nobility the one sort of the stock of kings who did successively reign: the other of the lineage of Aaron which only were made priests: for that people reposing all their good in religion and the worship of God, did account such holy men to be very noble: therfore whensoever God did threaten the destruction,& overthrow of that people he doth threaten them thus, that the state of the priest and vulgar sort of men shalbe alike 
Esa. 24. Ose. 4. ; and they which in ancient time did inhabit the Cellicke or north-west part of France did prefer their Druidae, who had charge of their sacrifices and judgements, before all sorts of people of the knights, and of the nobility 
Caes. lib. 6. de bel. ciu. Plut. in Anton. : So the Turkes and Arabians haue appointed certain great men called Mophtae to be their high priests, whom they do greatly reverence and the sum of all weighty ecclesiastical matters they refer unto them. The next place should be possessed of Dukes, Marquises, earls, passports, Barons, &c.   

The tenth Chapter.  
That in the law of tributes, subsidies, and prerogatives royal, all Nations haue consented.  
AS it behoveth every Monarch to haue a watchful care of his subiects good, and to bend the force of his mind to the preservation and maintenance of their safety and good estate: so subiects should not grudge to pay unto them tributes& subsidies, and other public impositions, that all necessary charges may bee substantially defrayed, al convenient designs produced into act, and solemnly exploited. Princes therefore must haue great care of the furnishing of their treasury; for who is ignorant that money is the strength and sinew of a state, howsoever Machiauell 
Machiau. in lib. obseru. in livi.  paradoxically would infer the contrary, a man very unfit to defend paradoxes: by it the bounds of the monarchy are guarded, the poor are relieved, they that haue deserved well are rewarded, the public and necessary business of the commonweal is dispatched, and therefore that country proverb 
Pecunia sine peculio fragilis.  may very well bee admitted into the princes ear, Money without stock is frail and brittle: And if war bee to bee undertaken or maintained, how can this bee done without money, sithence soldiers are never kept in order without salary, and reward payed and distributed unto them. Consilium principum fuit( saith Pollio) vt milites, quo solent placari genere, sedarentur: promissis itaque per Martianum aureis vicenis,& acceptis &c. 
Tr. ebb. Pollio in Gallien.  Philip king of Macedonia was wont to say, that there was no sconce, tower, or forcelet so strong, into which an ass lodened with money might not enter, and it hath been noted of Phillip late king of spain, that he effected more by his Indian gold, then his Spanish iron. Therefore Horace saith: 
Aurum per medios ire satellites  
Et perrumpere amat saxa, potentius  
Ictu fulmineo 
Horat. 3. Carmi. odd. 16. .  Therefore it is good for a prince in time of peace to provide for the maintenance of war: for that which is said of a city or common weal may bee applied to a prince or Monarch: 
— foelix  
Tempore qui pacis bella futura timet.  And how can provision bee made for an army without money,& how can an army fight without provision: for as Cassiodorus saith: Disciplinam non potest servare ieiunus exercitus, dum quod dost semper praesumat armatus, necessitas moderamen non diligit: one of the ordinary means used in all kingdoms for the dispatch and accomplishment of public affairs hath from all antiquity been tribute payed by the subiectes to their prince, a thing as ancient, so necessary: and Tacitus wisely collecteth the conveniency of it: neque quies gentium sine armis, neque arma sine stipendijs: neque stipendia sine tributis haberi possunt 
Tacit. lib. 5. annal. : The romans did maintain their warres by tribute; for after Pompeies victory which he had against Mithridates, they had out of Asia maior six millions and a half, out of the lesser Asia onely two millions, which none will marvell at, that knoweth Asia to bee a fertile and fruitful country, greatly replenished with the variety of the fruits of the earth, with the largeness of pasture, and the rankness of the soil, and the multitude of such things as are transported into other countries for sale: but the tribute of other provinces was so slender, that it scarcely sufficed for the defence and protection of them 
Cicer. pro leg. Manil. . And all France did not yield the third parte of that tribute unto the romans, which some part of france did afterward pay unto their kings, as Alciat hath observed 
Alci. l. 27. de V.S. : neither am I of the mind of Phillip Commineus, who denieth generally that princes may command tributes 
Philip. Commi. comment. : for I make no doubt but a conqueror may command tribute, and all that come in under the conqueror by the law of nations: and therefore the roman general saith unto the French men: jure victoriae tributum vobis addidimus 
Tacit. 4. histor. : And justinian doth command that tributes may be imposed vpon the zany being conquered vt victos se agnoscerent: and the Iewes though they had been clearly conquered( for their city was sacked, their temple possessed, their Sanctum sanctorum looked into: for as Florus saith: Impiae gentis arcanum illud vidit sub aureo uti coelo 
Flor. lib. 3. histor. :) yet craftily after their manner, because they would haue Christ to haue challenged their earthly kingdom, by that mean to draw him into hatred with Caesar, they demanded of him whether it were lawful to give tribute to Caesar: but he that alway professed, Regnum meum non est ex hoc mundo, gave them a bone to gnaw, Date quod est Caesaris Caesari, and quod Dei Deo 
Mat. 22. : for in dead tributes are allowed by the law of God 
Deut. 20. :& therefore Cicero saith excellently, that tribute is victoriae praemium, poena belly 
Cicer. in verr. 5. : And Orosius almost as excellently, that it is vinculum pacis, monumentum belly 
Oros. lib. 5. c. 1. . And though the Spaniards, germans and English, do seem rather to offer a tribute to their Monarch then the Monarch to command it,( for the courtesy of England is great, the clemency of their princes greater) yet for England thus much I dare speak,& under the rule of modesty protest, that sithence the universal conquest of William, who first commanded and imposed tribute vpon this land( for conquerors may command) tribute and subsidy haue been as justly both by the law of God, and the law of nations, payed in England as in Iewrie, yea and justly continued as a remembrance of a conquest: wherefore it is divinely said of that great divine Tertullian: Agri tributo onusti, hominum capita stipendio censa, notae sunt captiuitatis: Lands charged with tribute, polles with tax, are signs of conquest 
tertul. in Apolog. . Bodinus in my mind giveth good counsel to princes to set a great impost vpon such things as corrupt the manners of their subiectes, as namely upon these compounded perfumes, these paintings of the face, these Margarites, these Marchpanes, Wines, 
Bodin. lib. 6. de rep. c. 2.  and Tobacco: but vainly and contradictorily to himself doth Bodinus say, that Haec principi prohibenda non sunt, nec si velit posset, proving it out of the fifth book of Plato because such is the nature of men, that these things quae sanctissime vetantur, auidiùs expetant; By this reason there could bee no fault, nor default forbidden: as for Bodinus I excuse him thus: Nullum fuit magnum ingenium sine mixtura dementiae, which Seneca observeth 
Senec. in fin. lib. de ira. : And as to Platoes authority this is but errare cum Platone, Plato did err with Plato. Sometime he did err, as in the discourse of intemperate banquets, in the brutish lust& inward itch of Alcibiades, in his fond& vnclean fables:& of Athenaeus he is more sharply noted to bee inuidissimus, rabiosé maledicentissimus, mendacissimus, improbissimus, ridicule ambitiosissimus: 
lib. 4. 5. 11. & by his dark& amphibologicall writing, he is said to be the cause of the death of that thrise-worthy roman M. Cato, 
Plut. in Cat.  whose death at utica gave him his dismal name, and Solons laws though he were his ancestor, a great deal wiser, and far more employed in matters of estate, could not content him but he must haue visioned laws, such as were never used sithence his time, and therefore as it is likely, never shall be used: For what is it that hath been, that that shall bee, and what is it that hath been done, that which shall bee done: And there is no new thing under the sun, 
Eccleast. c. 1.  and that that shal be hath now been 
Eccles. c. 3. . But to come to my purpose again, and to another prerogative of princes.  
Princes likewise maintain their realms and their estate royal by importing and bringing in such things, as be of value or price. Wherefore livy noteth of Carnileus Consul 
livi. lib. 9. , that all the brass and all the silver he brought into the treasury: and he saith of Fuluius, that he brought out of spain into the treasury an hundred forty two thousand pound of silver: and an hundred twenty seven thousand pound of gold: and of Camillus 
livi. li. 3. , that when he had overcome the French nation beyond the Alpes, he brought in a hundred threescore and ten thousand pound of silver, and of brass three hundred twenty thousand: and of Flaminius 
livi. lib. 34.  that he brought out of Greece eighteen thousand pound of silver in bullion, and two hundred and seuentie thousand of plate, fourscore and four thousand shillings, and three thousand seven hundredde and fourteen pounds of gold: a buckler of gold entier. Of Phillippes money a hundred forty and five thousand pound, and an hundred fourteen pound of golden crownes, which the cities bestowed on him. And Paulus Aemilius 
livi. lib. 45.  that president of a captain, when he had surpised Macedonia, brought into the treasury a thousand and two hundred sestertians. And Caesar having overcome france, four thousand sestertians. Fabius Maximus 
livi. lib. 27.  brought in fourscore and three thousand pound of gold, beside great quantity of silver. And Scipio commonly called Asiaticus 
livi. lib. 36. 38. 39.  did bring in after his victory had against Antiochus, two hundred thirty and three pounds in golden crownes, two hundred forty and seven thousand pounds of silver, of Phillippes rials a hundred forty thousand, and a thousand and twenty four pounds of gold. Who can number that which Cato brought from Cyprus 
Flor. lib. 3. : that which Pompeie 
Lucan. lib. 3.  brought from the eastern& Southern warres? These by doing thus did make that common wealth great: others by doing the like may make others like. And Alexander the great did replenish all Greece with silver, when he had achieved the victory of Darius and the Persians: look vpon my whole army( said he) they which before had nothing but coats of steel, do now lie in silver beds 
Curti. lib. 8. . And much did hannibal enrich the Carthaginian treasury, when after his victory at Cannae he sent into the Senate of Carthage 
livi. lib. 23. , three strike of golden rings, and so compassed them by measure, though by number he could not 
D. Augusti. lib. 3. de civit. dei c. 19. . And in the holy Scripture it is reported of king Salomon: That the weight of gold, which was brought unto him from foreign countries yearly, did amount to the value of six hundred, sixty and six talents of gold, beside that which his collectors levied vpon his subiectes, and tributaries, and the custom which he had of merchants, together with the tribute of the kings of Arabia, and the Lieutenants and Gouernours of nations any way subject or subordinate unto him 
2. Chronic. cap. 3. 3. Reg. cap. 10. .  
custom likewise is a prerogative and benefit to which kings and Princes are by the Law of nations entitled: It was of the ancient Italians called Portorium, because it was to be taken of things that were to be carried out, and to be brought in 
Cicer. in oration. pro leg. Manil. . The Turkish Emperour taketh the tenth part of the value of the things that are to be carried out of strangers, and the twentieth part of his subiectes 
Bodin. lib. 6. de rep. c. 2. . And the king of spain taketh in India the tenth part promiscuè, as well of strangers as his subiectes 
The book entitled( The present state of spain. . And by the Law of England, Merchants strangers being made denizens, shall pay custom as strangers that be not denizens 
11. H. 7. ca. 14. .  
It is good for every Prince to haue special care and regard of maintaining merchandise, because by that mean, not only things profitable are brought into a kingdom, but many things are carried out to be sold, and exchanged for public good: and many sudden chances do arise, wherein no small dangers are put aside by their means. Plutarch reporteth, that in Solons time merchandizing was held in great price, and he giveth this reason for it, because by that mean diuers foreign commodities were brought in, friendship was procured with strange kings, experience in many things was attained 
Plut. in Solon. . And the use of merchandizing being once taken away in the kingdom of Naples, was the cause that all the provincial people was presently brought to poverty 
Pont. c. 45. de liberalit. . And for the alluring of strange Merchants into a realm, their privileges must be inviolably observed, especially at the times when they hold their martes, or fairs, that they may safely go, return, tarry, and stay with their wears, which diuers of our Statutes of England haue provided for, Magna Chart. cap. 28. 9. E. 3. cap. 1. et 2. 14. E. 3. cap. 1. 25. E. 3. cap. 4. 27. E. 3. cap. 2. Of this matter Kings and Princes should haue good regard: for Platoes admonition is to be followed, when he saith, Peregrinorum commercia respub. ne auersetur 
plate. lib. 12. de legib. . And Amásis the egyptian king was so glad of strangers resort and their commerce, that he granted to the grecian merchants mere strangers, the use and exercise of their rites and religion in their own language, and for their more expedite negotiation in that realm, there was a certain place appointed, namely Naucrate for the receipt of foreign wears 
Herodot. lib. 2. . And Aristotle is of opinion, that a principal city must be erected in some convenient place whereto things which be necessary to this life may be abundantly conveyed, and this he would haue situate near to the sea 
Arist. 5. polit. c. 7. et 6. politic. c. 7. . And the people of Megara did justly complain against the Athenians, who had utterly secluded them from their havens, and from marting with them 
Plut. in Pericl. . This therefore must needs be a good mean to increase the riches of a kingdom. But it is the Princes prerogative to permit and to forbid merchant strangers at their pleasure and discretion: and therfore the Statute of Magna charta hath in it a good clause for this purpose: Omnes Mercatores, nisi ante prohibiti fuerint, habeant saluum conductum exire,& venire in Angliam &c 
Magn. char. cap. 28. . otherwise some Merchants may sow bad seed, even the seed of seducement of the Princes lieges, shrouding themselves under the curtain of exposing wears to sale: But these which are honest Merchants, and of just meaning are not to be forbidden.  
Other benefits, and prerogatives there be, which the Law of Nations doth allow to Princes in regard of their exceeding costs and charge that they are at in the defending, and governing their realms: For though I haue shewed before, that a mass of wealth almost infinite was brought into the roman treasury: yet he that considereth their great expense, and exceeding charge, will, I am sure, confess, that this great wealth had need to haue been very well husbanded for the managing of their ordinary affairs, otherwise it would never haue stretched to the defrayment of their charges. Their forces did consist of two hundred thousand footmen, of forty thousand horse-men, three thousand warlike chariots, two thousand ships, a thousand five hundreth pinnasses, fourescoore gallies, double furniture of armourie, and three hundred Elephants, and in their ships were a hundred thousand souldiers, and mariners 
Lipsi. de magistr. Rom. lib. 1. c. 4. 5. : So that Cicero saith plainly, that the romans, notwithstanding all their great revenue and treasure, were scarce able to maintain their army 
Cicer. parad. 6. . In consideration of which great and extreme charges, the subiects of all Nations haue given and yielded to their princes, diuers princely and royal benefits and prerogatives for the magnifying of their estate: As first the use and benefit of salt Mines,( for as the Italian proverb is: Vino, oleo, è sale suono mercantia real: Wine, oil, and salt, are the merchandise royal.) And the Veientines in ancient time being overcome of Romulus, were straitly forbidden to abstain from the salt Mines, which were about the mouth of the river 
Dionys. Halycar. lib. . And these salt Mines were brought into better form, and were made more commodious for the common weal under the reign of Ancus 
livi. lib. 1. . And Aurelius victor doth note, that at the self same time an impost was made, and ordained for the same 
Victo. lib. de vir. illustr. . And an other impost was made when livy was Censor, who of this word Salt, had the name of Salinator given him 
livi. lib. 29. . And Paulus Aemilius having subdued the Macedonians did reserve the prerogative of salt unto the romans, and did forbid the Macedonians to use any salt, that perhaps they might find out, without the permission of the Senate. Yet the commerce of Salt he did afford to the Dardanians or Troians, the ancient progenitors of the romans 
livi. lib. 45. . And the publicans had Salt in farm, as may appear by Ciceroes report, and other authorities 
Cicer. pro le. Ma. l. said et hi. D. de publica. l. ●. C. pro fo. l. si quis C. de vect. et come. . A princely thing doubtless it is, and for it there hath been great contention betwixt great estates: as namely betwixt the Burgundians, and the Almannes, betwixt the Hermunduri, and the Catti, together with that of Perusia under Paulus the third, and that of france under francis the first, and diuers others daungerous quarrels haue been about pretensed titles to Salt 
Ammian. lib. 28. Tacit. lib. 13. Guicciar. lib. 12. 14. 16. 18. 19. . Neither is it to be marveled that Princes make so great account of it: for Homer accounted it divine, if it be true which Plutarch reporteth of him 
Plut. in symp. 5. q. 8. . But what shall we say now of the other entralles of the earth: as Pitch, chalk, lime, quarry ston, brimstone, and the like: As for gold and silver I make no question, but by the Law of nations they belong to the Prince. I would ask this question, Sithence God hath treasured in the mines gold& silver,& other metals: for whom hath he treasured them? if all the Mines of gold& silver should be in the lands of one subject: is it lawful for him to coin money of this silver& gold? no verily, as may appear by that question of our Lord and saviour, when he asked whose stamp or impression the money did bear 
mat. 22. ver. 20. , what shall he then do with it? shall he make plate of it: by this mean a subject shall haue plate,& the king none, which is not convenient: Therfore I take the iudgment given in the case betwixt the Q. majesty& the earl of Northumberland, touching the title of these royal Mines to be sound and grounded vpon invincible reason: howbeit the grant was omnium et singularum Minerarum: for the diversity is there by Wray well taken, that there be two sorts of Mines, mines royal,& base mines; Now mines royal may be subdivided into two other kinds, those which contain in them silver or gold entierlie: or which haue brass or copper in them, and haue some veins of gold intermixed, both these belong to the Prince: for the gold as magis dignum attrahit ad se minùs dignum: But such as haue in them merely brass, iron, copper, or led, may belong unto a subject by special title 
10. Eliz. come 310: Informac. pure Mines. , notwithstanding Dio a wise& judicial writer maketh all Mines of mettall in general public, as belonging to the Prince or common weal 
Dio lib. 52. . And mines of Pitch Cicero alotteth to the Prince by the like censure 
Cicer. in B●ut. . And doubtless there is great reason for their opinion, because it should seem that these metals were created of God, not for a private, but a public use at the first: for iron and steel do principally serve for armor, and there is a rule in the civil Law, De armis publice asseruandis 
now. 85. . Pitch is principally ordained for the glueing together of the boards of ships, and ships were principally ordained for the common weal. Copper and brass haue in all ages and common weals been compaignions of the aforesaid metals, and haue been used with them, and passed with them as the shadow with the body. Yet if a Prince haue transmitted his title or right unto the base Mines to any of his subiectes, I think he cannot by royal claim wrest them out of his hands. And this Suetonius reckoneth as one of the concussions of Tiberius, who took from cities and private men the metals in which they were lawfully interested 
Suetoni. in Tiber. c. 49. . And Laurentius Medices hath been touched likewise for the same fault 
Molin ad Dec. cons. 292. , that the lands and goods of Traitors and Felons do by the Law of Nations belong to the king or monarch hath been afore cleerelie proved in the second chapter of this Treatise. But what shall we say of Treasure found in the earth will not the Law of Nations assign it to the Prince? Yes verily, notwithstanding Plato his strange conceit, that they should be immobiles, and Dijs inferis sacri: for should there be no use of so precious thing, and one of the most gorgeous creatures of God. It is an argument of a froward& a brutish humour to make use of quarrie-stone& not precious ston, of coal, and not of gold. The romans were as superstitious as Plato, but a great deal wiser, for they dedicated a temple to Pecunia that they might be pecuniosi, stored with money 
D. Augstin. lib. 4. de civit. dei. c. 21. . Wherefore Iuuenall by his leave was deceived, when he writ: 
— et si funesta pecunia templo,  
Nondum habitas, nullas nummorum ereximus arras 
iwen. satire. 1. .  But it is no marvel if this poet were ignorant that it was idolized: for Varro writeth, that to many of the learned their gods, their sacrifices and ceremonies were hidden and unknown, but M. Stamfords reason wherefore treasure should belong to the king is unanswerable, and it is this quia dominus rei non apparet, ideo cuius sit incertum est 
22. Assis. pl. 99. : and it is a currant rule in all nations, In ambiguis casibus semper praesumitur pro rege. Adrianus Caesar made a lawe as Spartianus reporteth, that if any man had found treasure in his own ground himself should haue it: if in an other mans he shall give the half to the owner of the soil: if in a public place he shall divide it equally with the treasury. This law was abrogated by other laws following, and revived by justinian, but now and long time ago the civil law hath transferred it to the prince in whose realm it is found 
l. 3.§. Nerati. D. de acqui. posses. : and it is a firm conclusion in the common law: Quòd thesaurus competit domino regi,& non domino libertatis, nisi sit per verba specialia 
Fitzh. Coro. 281. 436. .   

The eleventh Chapter.  
That all Nations haue both secretly and by the course of their overt actions, acknowledged and yielded to the truth of the laws and commandements of the 2. table of the decalogue.  
HOw far the light of nature stretcheth, may appear by the lives of virtuous heathen men, who knowing that the six last precepts, which almighty God prescribed to his people were to bee observed and kept, yet wanted grace to refer them unto God, who ought to bee the mark of all our actions, and in regard of whom only they may be termed good:& M. D. Barlow in his deep& learned discourse against the shallow-headed Papist reasoneth soundly and proveth by the Apostles words, quidquid non est ex fide est peccatum,& by other undeniable proofs that such works could not be acceptable to God, because howsoever they proceeded from God, yet they were not referred to the glory of God: for though God moved them to do well, and some of them confessed: Est deus in nobis agitant calescimus illo: yet before the end he left them, because vainglory was their end, and so they did their suite at a wrong court. But now let us particularly examine the observation as well of the gentiles and Christians of these commandments and ordinances. The obedience that children ought to give to their parents hath been straitly commanded by God and severely enjoined by Emperours 
Exod. 20. v. 12. Deut. 5. v. 16. Acto. 4.19. Pompon. l. 2. ff. de just. et jur. pus Imperat. l. 1. C. de alen. lib. : and Homer divinely according unto the words of this precept doth threaten that the life of disobedient children shall not be long 
Homer. in Iliad. :& Plato hath an excellent speech to this purpose: He which maintaineth his parents when they are old in his house let him think that his house shal be never be possessed of the like ornament 
plate. lib. 11. de legi. : therefore it hath been ordained of God, that children which were disobedient to their parents, should be punished of the magistrate 
Deuter. 21. v 18. ,& his iudgement is thus set down: If any man haue begotten a stubborn and froward child which will not obey his father& mother,& being corrected continueth still in disobedience, let thē bring him to the elders of the city, and to the iudgement gate, and the father shall say to the people: this our son is stubborn and despiseth our admonitions, and giveth himself to riot and incontinency, then the people shall ston him, and he shall die: that the evil may bee taken from the midst of you: Yea even they which had only cursed their parents were adiudged to death e: In former time he that had slain his father or mother grandfather or grandmother, was first bet with rods until the blood trickled down,& then being thrust into a sack together with a dog, a cock, and a snake, he was thrown into the bottom of the sea, and by Pompeis law it was provided, that if the sea bee not near, he should be thrown out to devouring beasts. At Rome this fact was not heard of, till L. Ostius did slay his father, which happened after Hannibals war 
Plut. in Rom. l. 1. Et l. paena. ff. ad l. Pomp. de parricid. Cicer in oration. pro Rosc. Amerin. et in orator. : And Plato his law is, that if a man in his fury or madness do kill his father or mother, and they before their death do pardon him the fault, yet he is to be adiudged guilty of slaughter, of impiety, of sacrilege 
Pl. lib. 11. de legi. . But what shall wee say of Orestes, who did slay his mother because she did slay his father: though there bee diuers opinions which do acquit Orestes, as namely the opinions of Cicero 
Cicer. in Milon. , Paterculus 
Paterc. lib. 1. , and Quintilian 
Quintil. lib. 5. c. 11. : yet against them are Socrates 
plate. in 2. Alcibiad. , Diodorus 
Diodor. l. 5. ,& Aristotle 
Aristot. l. 2. Rhetoric. c. 5. , but why should we depend vpon the iudgement of man in this case, when it is manifest that the iudgement of God was in the highest degree, if we respect the pains of this life onely, executed vpon Orestes: for he was plagued with madness a terrible sign of the revenging wrath of God.  
And murder hath been so much detested that, a beast which had slain a man was commanded to bee stoned, and that his flesh should not bee eaten 
Exod. 21. v. 28.  and by the civil law if a man be bitten of an other mans dog, the owner of the dog is chargeable unto him that is hurt, because he did not tie up his dog or musle him 
l. 1.§. said etsi canis. ff. si quadrup. pauper fecet. : therefore Solon devised a pretty punishment of such wrongs, namely that the dog who had by biting hurt any man should haue a clog of four foot tied to his neck, and so should be yielded up into the hands of him whom he had hurt, which Plutarch calleth bellum commentum ad securitatem 
Plut. in Solon. . They which had killed a man in Greece did usually fly to foreign princes, and there if he who was slain was a stranger, they used to sit at the threshold of the door with his head covered with the sword wherewith he was slain: if he were one of the same country, the sword was broken in two, and the point of the sword was held under one arm, the hilt under the other 
Sophocl. : a lamentable sight no doubt, but done to this purpose, that they which had slain the men might by these foreign princes haue expiation of their fault, which expiation was fully as bad or rather worse thē the murder; for the princes who were to expiate thē, did by enchantments invocate and make suite to the wicked spirites, that they may absolve them from the fault which is done by sprinkling them seven times with water, the predecessor of the Popes holiwater, and to this feat seven garments were therewith sprinkled, then they kill a swine, a fit sacrifice for the devill: then they call vpon jupiter hospital, praying him that he would not vex with fury the party that had offended: thus the absolution is worse then the offence, and like to that of the merry monk: Absoluo te ab omnibus benefactis tuis,& peiorem te relinquo quàm accepi 
Erasm. in colloqu. . Then there are boughs spread along the houses, that the devill might tread soft. Some of them washed themselves in the sea, till they had almost drowned themselves: murder is the forerunner of death: and that foolish solemnity Catullus glanceth at: Nec genitor Nimpharum abluat Oceanus, Likewise ovid: 
Ah nimium faciles qui tristia crimina caedis  
Fulminea tolli posse putatis aqua.  after this manner Adrastus fled from Thebes to Tydeus: Peleus fled to Patroclus, when he being but a boy had slain Clesonynus a boy likewise:& Paris though he had stolen away Helena the wife of Menelaus; yet when he had slain Antheus Antenors son, whom he loved, he fled to Menelaus( a great iudgement of God) his very enemy for expiation, like to that iudgement of the almighty executed vpon Cosby an Irish-man, who when he had slain the towardly captain the Lord Burgh, sought by-paths, and had thought to haue fled from the slain body, as far as the sun is from the Moon, but the Lord put a ring into his snout, and brought him back again, almost as near to the murdered Lord as the grass is to the earth: a fit admonition for these times wherein homo sacra res per iocum occiditur 
Senec. lib. de ir. : In egypt and babylon he which had slain a man did penance by doing pilgrimage on the mountaines, and then sacrificing vpon the tomb of the dead, and so being cleansed of the Gymnosophistes. The Persians under the reign of Semiramis did shave the head of him that had slain an other and confiscated his goods: and caused him to go upon burning coals or firebrandes, and then sprinkled him with water, the pattern of the Popes purgatory 
Sard. Ferra●. de mor. gent. : The Iewes did usually kill such by sword or by rope 
carded. Sigogoni. in lib. de rep. Hebr. : according to the commandment of God. Qui effuderit sanguinem hoins in homine, sanguis eius effundetur, quia ad imaginem Dei fecit hominem 
Genes 9. v. 6. mat. 26. v. 52. . How murder hath been punished by the civil law, the canon law, and the common law of this realm, I haue shewed I hope sufficiently in my parallel of the laws, so that I shall not need here to role the same ston.  
After the hurt of a mans own body, nothing can happen to him worse then the abusing of the body of his wife: for( as Salomon saith) jealousy is the rage of a man, therefore he will not spare in the day of vengeance 
proverb. 6. v. 34. . This last did first cause the deluge: and after the deluge, the destruction of the people of Sodom and Gomorra voluptuously mingling themselves with the women of the Moabites, where there were twenty and four thousand slain 
Num. 25. v. 9. : For the uncleanness of the Gabeonites with the levites wife, the whole tribe of benjamin was destroyed 
Iud. 20. : By the law of moses if any had committed adultery with another mans wife, the adulterer, and the adulteress were both condemned to death 
Leuit. 20. v. 10. :& so was adultery punished by the roman lawe called the law Iulia howsoever it slept in Iuuenall his time, one that had been wanton himself: ubi nunc lex Iulia? dormis? yet after this law was recalled by the Emperour Alex: 
l. Castil. C. ad l. jul. de adulter.  therefore Constantine did punish sacrilegious destroyers of marriage by the sword 
l. quamuis. c. eo. : therfore the Popes stews are to be abandoned, by whose contagion all Europe hath offended: Let his holiness& his fulminant foolish deity as well in all other respects as in this, bee measured by the law of God, and it will appear to bee abomination by the law of nations and desolation by the law of God, which all nations owe unto him. God hath said. Non erit meretrix in Israel, nec scortator 
Deut. 23. v. 17. . By the imperial law it is forbidden, that no bawdrie should be exercised, or any stews suffered in any place through the whole roman Empire 
novel. Const. 14. : Lactantius writeth 
Lact. lib. 6. c. 23.  that the devill consecrateth stews( as the Pope doth Iesuites and Seminarie priests, the one for spiritual lust and idolatry, or if that fail, for treason: the other for carnal) that he may solemnly laugh both at the adulterer and the adulteress, and so make a banquet of both, which is signified by the Italian by-word. The woman is the fire, the man is the roast-meate, in cometh the devill, and he playeth the cook. 
Flor. giardin. de recreat.  In Germany they use to cut off the hear of an adulteress, and the husband whippeth her out of his house through the street 
Far. lib. de mor. gent. : and I haue seen some of them balded here in england with a white sheet on their shoulders on the market day: but that custom is now, as far as I can perceive disused: I could wish that it were recontinued, that we might know a knave and a quean by their colours. And they were wont likewise to haue a bell rung before them, which was a custom used amongst the romans, as Perseus sheweth, who because it was wont to be rung at nine of the clock, calleth them therefore Nonarias, a custom discountenanced and broken by Theodosius, but for what reason I know not: shall we use nothing that the Gentiles haue used? Mahomets law is too light for this fault: for the adulterer is punished but with an hundred stripes. But in egypt in ancient time he had a thousand, and the nostrils of the adulteress were slitted. Solons punishment likewise was too light, yea, and against reason, who imposed vpon him that ravished a maid, the mulcte of ten groats, vpon him that alured a maid to naughtiness twenty. But in Athens afterward the rauishour was punished with death, if the ravished party would not mary him 
Far. lib. de mor. gent. .  
In the prohibition of theft, all Nations haue likewise consented. They that steal a sheep out of the flock, or an ox out of the heerd, are both by the civil and common Law theefes. 
Vlp. lib. 1. ff. de abig.  They which steal doves out of a douecote, are by the civil Law accounted theefes 
Instit de rer. divisi.§. seru. l. 3. . But by the common Law, felony cannot be committed by the taking of beasts that be savage, 
§. item far. ff. de acquire. rer. poss. justit. de rer. divis.§. gallinar. l. si pauon. ff. de furt.  if they be savage and untamed at the time of the taking: nor for taking of doves being out of a douecote: nor for taking of fishes being at large in a river: for such taking is not contrectatio rei alienae, said quae est nullius in bonis 
18. H. 8. 2. 22. Aff. pl. 95. . And the stealing of a do which is tame and domestical is felony. But as Mast. Stamford well noteth, it seemeth that he that stealeth it should haue certain knowledge that it is tame: but if the do be killed, and then stolen, this is certainly felony 
Stamf. lib. 1. cap. 16. . And he that theeuishlie cutteth a mans vines, by the civil Law is punished as a thief 
L. scien. ff. arbour. furt. caes. . And by the Law of the twelve Tables, if any man did cause his beasts to feed vpon, or himself did cut and carry away corn growing vpon the ground, if he were of full age he was ordained to be hanged and to be sacrificed to Ceres, if not; he was whipped, and did yield either the damage: or if he were obstinate, the double. Wherein the Decem-virs did seem to haue imitated the severity of Draco, who did inflict no less punishment vpon the stealers of grapes and herbs, then vpon homicides, and sacrilegious persons: But the romans succeeding altered this, and inflicted no other punishment then that which is above mentioned to be imposed vpon him, who is within age: But as the Law of Moses 
Deut. 23. ver. penult. et ult. , so it seemeth the Law of Nations did permit a quarreler to relieve his hunger, and to taste so many grapes as his present use did require, but not to take them away with him. But by the common Law, if a man cut Trees, and at the same time carry them away, this is not felony, but a trespass: But if they lye vpon the ground a long time as the goods of the owner of the soil, this is felony 
22. E. 3. Corone 256. 10. E. 4. 15. Stamf. 25. . The Praetors of Rome did punish a thief poena quadrupti: and the Iewes with the seauen-folde, or if his goods would not amount to so much, with all the substance of his house 
proverb. 6. vers. 31. . They of Mysia do break the legs of theefes 
Far. lib. 2. c. 26. . The Scythians do punish petty larceners with whips: But if a thing of good value be taken away, they must render the nine-folde, or else be put to death 
Far. ib. . amongst the Phrygians he was put to death that stolen any instrument of husbandry, or did kill an ox that was fit for the plough: because the living of these countrie-people did much consist of husbandry 
id. ibid. . As in Halyfax, he that stealeth but a yard of cloth is presently put to death: because the whole liue-lode of the most of them resteth incloth.  
And as to the interdiction of false witness or testimony, all Nations haue subscribed. The grecians did enforce their witnesses to swear at the altar. And Plato saith, that witnesses were wont to swear by jupiter, Apollo, and Themis: 
Cicer. pro Flac.  signifying by Themis that they which did swear falsely did offend contra ius divinum& humanum: signifying by jupiter that they should not escape the reuenge of the wrath of God: by Apollo that their falsehood and perjury could not be concealed: and one witness that hath seen a thing done, hath been more credited then ten that do onely testify by heeresay. Pluris est oculatus testis vnus, quàm auriti decem saith Plautus 
Plaut. in Trucu. . And to this purpose Homer did imagine two gates of dreams: one made of ivory by which false shadows did pass, the other of horn by which true: By the ivory he meant the teeth, signifying that by report many fables did grow: by the hornie gates he meant the eyes, showing that the eye-sight maketh the truest report 
Hom. in Ili. . justinian calleth it oculatam fidem when the thing is known by the eye sight 
§ ult. just. de grad. . And he hath diligently provided by his laws, that innocency might be safe against sycophants 
novel. constit. 13. et 16. . And it is a divine saying in the civil Law, Testimonia, instrumenta non tam ad praestigium probationum, quàm e conscientiae quae mill testium loco est fide producenda sunt 
L. propriet. l. ult. C de probat. l. eos test. C. de testib. . In England it is diversly punished by the Statute of 5. Elizab. and this is according to the Law of God: Non iurabitis in nomine meo mendaciter, neque polluas nomen dei tui: ego dominus 
Leuit. 19. v. 12. : For truth was so much favoured amongst the Heathen, that the egyptian Iudges had the image of Truth hanged about their necks.  
And the coveting of the things that belong to an other man is likewise forbidden: of his wife, Qui aspexeret vxorem proximi sui ad concupiscendam eam, iam adulterium perpetrauit cum ea in cord suo 
mat. 5. ver. 28. . And justinian his Law is tart: Si quis non dicam rapere, said attentare tantummodo virgines sacras auserit, capitali poena feriatur 
C. de Episcop. et clear. l. si quis non dicam. . And S. Chrysostome saith well: Si mulier ornatur vt viros irritet, etiansi neminem vulneret, tamen adultera est 
Chrysost. in Matth. 1. homil. 17. . But some who are glad with fig-leaves to cover their faults, and to purge their black jaundice with a glister of ink, do excuse their sin by Dauids example, having committed adultery with Bersabe the wife of Vria, and make that their protection, for which david craved a pardon: But their souls are therefore more sinful, because they followed david as he was a sinner: the woman was far off, but temptation was near, as S. Augustine saith 
August. in come sup. Psal. 51. , his own flesh was his betrayer, and when he opened two eyes to behold her beauty, hell opened two gates to sin: by the one of which came adultery, by the other murder into Dauids hart. The desire likewise of an other mans lands or goods hath been even of the pagans detested: Vicinorum sulcos non transgreditor, neque interuertito, saith justinian the Emperour 
Iustini. l. george. Tit. i. . Ne transgrediaris terminos antiquos saith Plato 
plate. lib. 8. de legib. : And therefore as I haue shewed before, Terminus was worshipped of the romans: for as the Poet saith: Omnis erit sine te litigio sus ager. And the Law of the twelve Tables was: Qui terminum exarassit, ipsas et boves sacri sunto. Cu. Pompeius is highly commended of Plinie, because he would never buy any mans ground that lay near unto him 
Plin. lib. 18. c. 6. , being better minded then ahab to Naboth, to whom he said: Damihi viniam quae appropinquat domui meae 
3. Reg. 21. : But against such the prophet Esay pronounceth a woe: Vae qui coniungitis agrum agro et domum domui 
Esai. 5. ver. 8. : But because these things are plain, they need no further discourse.   

The twelfth Chapter.  
That the rules of war and Law of Nations are not to be observed and kept with pirates, Rebels, Robbers, Traytors, Reuoltes, and usurpers.  
WIth pirates, Rebels, Robbers, Traytors, and Reuoltes, the Law of arms is not to be observed and kept: for they by offending haue not withdrawn themselves from public jurisdiction 
Bald. 3. cons. 96. : for by offending a man may not bee said to be of more price, or of greater liberty, then he was before 
Paulus l. 63. ad leg. Falc. , and for an other reason they may not claim advantage by the Law of arms, because that Law springeth from the Law of Nations, and such persons may not enjoy the benefit of that Law to which they are enemies: To these men which haue withdrawn themselves from the communion and society of men: and as Florus saith 
Flor. lib. 3. , haue broken the league of mankind; how can the Law of Nations, which is nothing else but the communion and league of Nations, extend any favour. pirates( as Plinie saith) are enemies to all men living: and therefore Cicero saith, that if thou dost not bring to Robbers or pirates the ransom which thou hast promised for thy life, there is neither offence, nor fraudulent dealing: no though thou hast promised with an oath 
Plin. lib. 2. c. 46. Cicer. pro leg. manil. et 3. de office. . Spartacus that notable rogue did move Crassus to contract a league with him: But he was with indignation rejected 
Appi. in Mithrid. et 1. civil. . Tacfarinas that famous robber of Affrike grew to such height of arrogancy, that he sent ambassadors to Tiberius the Emperour: but his army was sharp against him and said, that Tacfarinas dealt very reproachfully with him, because he being no better then a robber by highways, did notwithstanding so deal with him, as if he had been a public or just enemy 
Tacit. Annal. 3. . war hath never been as Heliodorus well observeth, compounded or determined by articles or leagues with such dissolute persons, but either they haue ouercomed, and so survived, or else haue been overcome, and so haue been put to death 
Heliod. lib. 1 : Therefore some 
Alberic. gentle. lib. 1. de jur. bell. c. 4.  do wonder that D. Hotoman dare affirm that the Law of Nations doth extend to fugitives and robbers 
Hotom. 7. ult. quaesti. : and his first reason is, because there is no Law which doth interdict or forbid to covenant or contract with them: and such things as are not verballie forbidden, are implicatiuelie permitted: This reason is of no force, for in that they be enemies to all, and do spare no man, they ought not to protect themselves by that which is the Law of all men. The question is not what may bee done unto them, and how many haue dealt with them, but how by rigor of Law and strict reason they ought to be dealt with. To dispute of Law, is to dispute of a bonde whereby we are bound, but wee are not bound to such. He bringeth likewise for proof the saying of Caesar: Should it not bee lawful for Citizens to sand ambassadors to their fellow citizens: when the same hath been permitted to rogues and theefes haunting the wild woods of the Pyrenean mountaines 
Caesar. lib. 3. de bel. civil. . But this maketh nothing to his purpose: for Caesar doth not there directly affirm that it was lawful, but he spake it rather to bring the Pompeian faction into hatred, signifying that they did afford the security of embassing to such lewd persons, whereas to their fellow Citizens they did utterly deny it: But here difference must be held betwixt an absolute monarch which taketh pray or spoil upon the seas, and dominions of other princes, and these which bee pirates without all colour of iustice: therefore the pirates answer to Alexander is misliked, 
Alberic. gentle. lib. 1. de jur. bel. c. 4.  when he said boldly, That because he did rob on the seas with one small pinnesse, therefore he was accounted a pirate: but because Alexander did the same with many great gallies, therefore he was termed the governor of a fleet 
Cicer. 3. de repub. : howbeit this saying of the pirate seemeth to be commended by Cicero 
Ibid. : and to S. Augustine 
August. l. 4. de civit. dei.  it seemeth to haue been spoken truly and eloquently, which is very strange, unless they did account Alexander a robber, whom some doubt not to call so 
luke. 10. Senec. 1. de benefic. : and Alciat also is deceived, which not onely alloweth the said speech of the pirate, but even piracy itself 
Alci. 1. Cons. 1. , because forsooth pirates are tolerated of some princes, and there were some nations which did publicly practise and put in ure that course of life. The Normanes( saith P. Emilius) as antiquaries do think, did reckon and repute piracy amongst laudable things 
p. Emil. lib. 3. Franc. : And Alciat reasoneth further, That they offend less then others which do so spoil vpon the sea, where the law of nations onely is of force and no other law: for( saith he) by that law the sea is common. This manner of discoursing becometh not Alciat: but regard is to bee had, whether he that before was a robber do afterward become a lawful& just captain, which justine affirmeth of Aristonicus 
justin lib 35 : Frontinus of Viriallius 
Frontin. lib. 2. c. 5. : and Appian of Spartacus: of Apuleius who was proscribed, and of Sextus Pompeius 
Appia. lib. 1.& 4. bellor. civil. : which is not so much effected by the levying of a great army, or the increase of the same, as these writers and other historians 
Herodia. l. 1.  seem to think, but by the enjoying of a good and sound title, and by the maintaining of a public cause: for when Viriallius being before a robber did employ himself wholly for the defence of the liberty of his country he became a just captain, and may well be said to haue born lawful arms: for which cause the Romans did conclude peace and league with him, and did likewise call him their friend: So Arsaces whilst he sought to win the crown of the kingdom of Parthia, being his country from the Macedonians, was when he had committed many robberies& pillages, highted a lawful king: and Aristonicus whilst he claimed the kingdom of Asia by right of blood and course of succession, might well be termed a governor in war and thought to haue pursued that contention which is commonly called war. And so it may be noted that God himself would that samson should not move against the Philistines without cause, but so did bring to pass that from private occasions he should as it were by degrees ascend to a public quarrel 
judic. 14. : but they which ground not their wars vpon a public cause are not properly enemies though they haue arms, and do term themselves governors,& though they encounter such as be lawful governors, and haue under their regiment a complete army of soldiers: he is properly an enemy which hath a court or a commonweale, a treasury,& power to make league, peace and truce. And Charles Martelle did say of the Saracens that they could not therefore clean themselves from the fault of robbers because they went in great troops,& because they had captaines,& tentes, and ensigns 
P. Emil. li. 2. , sithence they had no just cause of war which is the only warrant of bearing arms 
Ceph. consil. 620. : What shall then be said of these French men which were taken in the Portugall war of the Spaniards, and were not used as just enemies: the soldiers I mean of Don Antonio were handled as pirates: yet the very history doth convince that they were not pirates: for they did show forth their kings letters, the king of France his letters whom they did serve,& not Don Antonio though for him they did fight 
Connest. l 9 : but they which haue been subject to others,& are recoiled from their loyalty of lieges becoming rebels, let them beware how they sand ambassadors to him from whom they haue revolted. But it cannot be discerned by the law of nations which Phillip late king of spain did to certain Flemings which came to him as ambassadors, though they were never under his legiance or subiection, their estates having been free from time immemorial, as al histories of account do with clear voice pronounce: And dionysius did imprison the ambassadors of the Siracusanes, because that city having driven the tyrant into his tower did set themselves at liberty 
Plutarch. in Dio. : but Buchanan seemeth to err, which compareth two just princes, nay such as himself confesseth to be most just 
Buch. in lib. de re. Scot. , namely Hiero of Siracuse, and Cosimo Medices Duke of Tuscana, to two great theeues which did justly divide the pray,& did rule well though they came unjustly by it: for how was Cosimo a robber, if he did undertake the government of that city which did willingly offer unto him the government, he should perhaps haue suffered it to be subdued by some foreign Lord: or else haue left the regiment to others who would haue hazarded that ship vpon rocks and tempests, whereas that excellent man knew well how to keep the ship in the haven: but it seemeth that the law of arms is not bee kept to an usurper: and therefore Constance the Emperour could not justly bee reproved if he had punished these ambassadors, which julianus being consorted with him in the Empire by the French army did sand unto him, as he threatened he would, for both julianus and the army were rebels 
Amm. li. 21 . But this is to bee understood onely of such rebelles and such usurpers as haue been sometimes in subiection, and under the leigeance of some absolute Monarch: for they which do onely break league or friendship, or ancient intercourse, are not to bee excluded from the right and benefit of ambassage 
Alber. gentle. l. 2. de legate. c. 7. : for how often did the Volscians, latins, Spaniards, and many others revolt from the romans, and yet sent ambassadors to them without hurt or fear of danger 
livi. lib. 5. 6. 29. &c.& Appi. lib. 1 de bel. civil. : they may lawfully claim the right of ambassage, because they had and enjoyed it before their revolt, but otherwise it is of subiects, because they had it not so, neither is it reason that they should gain any new right, or haue any advantage by their crime or offence.   

The thirteenth Chapter.  
That by the law and practise of nations, war is not to be maintained against infidels, onely because they are infidels, and that princes in their realms may inflict punishment for strange worships.  
IF religion be of that nature, that no man ought against his will to bee compelled unto it by force of arms, and that be termed a new and unusual preaching which exacteth faith by blows: then it followeth that such war is not just 
c. 35. 23. q. 5. c. 1. 3. disti. 45. c. 3. de babt. . It is a point of irreligiousnes( saith Tertullian) to forbid the opinion conceived of the deity, and that it shall not bee lawful for me to worship whom I would, but I shall bee constrained to worship whom I would not 
Tertul. Apolog. et ad Scap. : Faith is to be persuaded, not to be enforced( saith Barnard) 
Barn. cantic. ser. 66. : And hilary saith, that by a new example men are compelled by arms to beleeue 
Erasm. pref. Hill. . So Lactantius saith, that religion must be established by words, not by swords 
Lactant. 5. justin. 20. 21. :& so Arnobius saith to his aduersaries: Because ye can do much by force and weapons, do ye therefore think that ye do exceed us in the knowledge of the truth 
Arnob. adu. ge. 4. ? Ye haue heard authors, now hear reasons. That which is against the nature of a thing cannot tend to the effecting or preserving of that thing, but to the destroying of it: That which standeth by his own strength is not to bee upheld by other supporters. This opinion of not moving arms for religion, 
Victor. relect.  Franciscus a Victoria a very learned man, affirmeth to bee allowed of all writers none exempted: therefore he saith that this could bee no just cause to his countrymen the spaniards to maintain war against the Indians. And Didacus a Couarruuia a Spaniard likewise& a learned lawyer 
Couarer. reg. pre.§. 10. , doth vouch many canonists and divines which do teach the same. Baldus also affirmeth, that it is not lawful to wage battle against infidels living with us in peace, and not being injurious unto us 
Bald. lib. 5. de justit. : yet Didacus saith, that Aquinas is of a contrary opinion 
Couar. ubi supr. . And the fathers of the council of Toletum did make a decree touching the afflicting of heretics by war, which is recorded in the cannon lawe 
c. 3. de her. c. 5. dist. 45. . And Barnard moving Lewis king of france against Asia saith: Can any war seem more just to the then that which is most holy. The Lacedemonians also amongst other objections made this a cause of their war amongst the Athenians, and said that they were prophaners of religion: and the Athenians did on the contrary parte charge the Lacedemonians with this, that they did draw them that yielded themselves out of the temples, and killed them 
Thuc. lib. 1. . But surely such pretences are but colorus of avarice and cruelty, for there is no religion so barbarous, which moveth us to slay men of a contrary religion 
Na. Co. li. 1. . King Ferdinand entitled the catholic, did cover all his dishonest desires with the vail of religion, as Guicchiardine noteth 
Guicc. li. 12. . And Charles the Emperor the nephew of Ferdinand did not garnish his ambitious enterprises with any other colour 
Iou. lib. 30. . But the warres of the French and other people of Europe which did relieve the Christians vexed of the Turkes, and revenging the injuries done to Christ haue been liked& allowed of 
Couar. reg. pecc.§. co. : but that is an other question of defensive war, which without all doubt is lawful, if it be maintained by them that may undertake the defence lawfully. But now the question is whether only by pretence of religion war may be undertaken, and this hath been denied, and the reason is, 
Alber. Gentill. lib. 1. de jur. bel. c. 9.  for that the cause of religion is not betwixt man& man, but betwixt man and God: neither is the right of any man prejudiced for a diuers religion, because the bond of religion is onely to God:& it is a law betwixt God and man. But here wee do not speak of such, which are altogether void of religion, and live rather the life of beasts then of men. For they like pirates, the common and daily enemies of all men are to be pursued by war,& to be brought by arms into compass, and to the order of civil conversation. For they may justly seem to bee injurious to all men which in the bodies of men carry the appetites of beasts, yea most savage beasts: for that there is some spark of religion in some kindes of brutish creatures, hath been delivered and believed. These are they which fight with God after the manner of the giants, which is as much to say as to resist nature, for religion is parcel of the law of nature 
Caluin. li. 1. institut. . And( as Cicero saith, there is no nation which haue not some religion 
Cicer. lib. 1. de nat. dear. : for though many nations follow not a good religion, yet there are few void of all religion. 
Baldus. 1. cons. 316.  Where Agathias said, that the almains were worthy of pity though idolaters. Therfore such are to be suffered and to be taught, not to be compelled& exterminated: and many civilians haue answered in the point, that the Iewes were not to bee molested nor enforced to the faith, though they sithence Christes doctrine revealed unto them differre nothing from Idolaters. Now let us consider whether war and sword ought to be assayed against such as despised the religion received in a city or commonweal: but doubtless they which haue used strange worship haue been in all commonweales severely punished. Plato against such awarded a capital punishment 
plate. 10. de legi. : the civil laws haue made diuers punishments 
just. 1. Apol. : for this cause Socrates is killed at Athens: Diagoras is proscribed, and some in other places be punished, slain 
joseph. 1. App. Cicer. 1. de natur. dear. Plut. Nic. . Anacharsis was slain of his countrymen: the Thracians for his greekish rites, which he did use being returned out of Greece 
Herodot. 4. . And Tiberius was hote against external ceremonies, and against the egyptian and jewish rites. And Augustus did use the accustomend religion, and did not tolerate any new 
Sueton. 93. Dio. 53. 54. . And so Maecenas did counsel Augustus to punish such as brought in new or foreign religion: because they drew many into conspiracy, and to other inconveniences, very prejudicial to a monarchy 
Dio. lib. 52. . And some Princes for the same cause do mislike the doctrine of Luther 
Guicc. 13. 20. . But other Princes which harken to Luther are of a contrary mind. Surely such religion as destroyeth the government of common weals and Monarchies, is not to be suffered 
Aelia. lib 9. : But if the religion be good and do not hurt Princes, they that withstand it are like the stubborn Persians which resisted daniel 
Dan. 6. . But some perhaps will say, that diversity of religion hindereth the society of men, as contrariwise the unity thereof doth preserve it, which Philo speaketh of his countrymen the Iewes 
Phil. de for. . And others haue said that by the difference of religion and sects, and by the distance of life and manners hatred and seditions arise, by which evils, cities often do perish. All diversity of religion dissolveth government as Cardanus thinketh 
carded. 3. de sap. . And a modern politician doth earnestly avouch the same 
Lips. in polit. . Wherefore Procopius saith, that Christians by disputing subtly of their Faith, and contending amongst themselves, do stir up sedition 
Procop. 3. Goth. . And an other historian addeth: If at any time controversy do arise of Faith, parents do not onely dissent from their children, but the husband from the wife in seditious manner 
Nic. Call. 17. Histor. 7. . Valentinian and Gratian both famous Princes, do deny unto Valens near unto them in blood, aid and succour for this diversity of Religion 
Zonar. Cedr. Callis. 11. histor. 49. : and added further, that it was not just nor godly to help an ungodly man, and to enter into a society with an enemy of God, a professed Arrian. And vpon that reason justinian the Emperour moveth the French against the goths, because they also were Arrians 
Procop. Goth. 3. 4. . All which come to this sum, that the Princes cause may seem just, who suffereth one Religion, and which maintaineth it by punishments. Yet some are of an other mind, that force is not to be used against them which embrace a contrary Religion: but they temper their opinion with this caution: Nisi quid detrimenti illinc respub. capiat. unless the common weal may receive some damage thereby 
Alber. Gen. lib. 1. de jur. bel. c. 10. . And therefore Augustus is reported to haue favoured the synagogues of the Iewes, because to him they seemed not Bacchanals or conventicles made for disturbing peace, but the schools of virtue 
Phil. de legati. : for many times unlawful assemblies be under pretence of Religion 
l. 2. de extra. or. l. 1. de coll. , which are never without danger, and haue always been forbidden 
Mant. in orat. pro sixth.& Asc. pro Cornel. : But when it is apparent that such meetings are not made of evil intent, the prohibitive Law ceaseth 
Alciat. 5. consil. 107. Launpr. Plin. vltim. epistol. 103. 104. Euseb. 3. 27. 33. Tertul. apol. . And there is an Epistle of the Emperour Marcus extant, forbidding Christians to be troubled, unless they were convicted to haue attempted some thing against the common weal, and if nothing were objected unto them but diversity of Religion. And Alexander severus did allow the privileges of the Iewes, and did tolerate Christians. And trajan did before commande, that the Christians should enjoy their liberty being instructed by Plynie of their innocency 
Ioui. lib. 18. . even in S. Peters Church at Rome the eastern people and the Aethiopians do offer sacrifice after their maner,& are maintained at the Popes charge 
Ioui. lib. 18. . The lutherans are permitted to haue their public exercise in all the principalities and dominions of the house of Austrich in germany. But diuers Religions are not permitted of the lutheran Princes: though Bellarmin affirmeth it, but of the papists which is denied by him 
Bellarm. 5. cont. lib. 3. c. 19. et 18. . One Religion only is not professed in the city of Augusta, of Ratisbona, of Frankford, and other free Cities of germany In such sort live the Polonians, the helvetians, the Rhetians, and thou either deceivest us, or else art deceived justus Lipsius 
Lips. de vna relic. , which deniest that there is but one Religion in any one principality of germany. There is indeed but one suffered of the lutheran Princes,& this is true, notwithstanding Bellarmins premised assertion: But of the Princes of Austria not only the religion of Luther is tolerated, but even the heresy of the Anabaptistes. And whereas Bellarmin saith, that three only Emperors did permit diuers religions: namely jovinian, who was reproved by synod: Valens who was an Arrian: and julianus who was an Apostata. surely there is none of sound iudgement but will agree with him in this, that Princes ought principally to regard the unity of Religion, as a thing most pleasing unto God: who hath said by his holy Apostle Ephesi. 4. vers. 5.6. Vnus Dominus: vna fides: vnum baptisma: vnus Deus et pater omnium 
{αβγδ}. : If God, Faith, and baptism in general, and quocunque modo would haue served, paul who in his heavenly Epistles useth not one word superfluous, would not haue said vnus, vna, vnum: would not haue urged it, would not haue exacted it, would not haue cried for it. Yet I would not haue weapons and arms to stir up war for Religion only, if rebellion or disloyalty be not mixed with it: For heresies may be punished, and yet citra bellum, 
Trismeg. de nat. deo. Dio lib. 42.  without war. Let Lipsius therefore be silent, who saith that it is necessary to contend by weapons, whilst some go about to prefer their religion before other some: or else saith he, it will be no religion, which is could and calm. To this warlike note& hote humour, which argueth his want of policy, and that he is neither wise as a serpent, nor simplo and mild as a dove. It may be answered that warres for Religion are only there to be tolerated, where there is no religion at all, or where subiectes pretend religion as a cause of their rebellion, not where there is diversity of religion. Nay it is no religion which is hurt to the slaughter of Citizens and subiectes, and the desolation of kingdoms or countries. Are not the egyptians to be laughed at, which with mutual warres and wounds did afflict themselves, for a monstrous and absurd religion on both sides 
Trismeg. de nat. deo. Dio lib. 42. : For it appeareth by Diodorus Siculus, that the diversity of Religions was to this purpose brought into egypt, that the people might disagree amongst themselves, and so haue no leisure nor opportunity to conspire against their king 
Diodor. Sicul. lib. 2. . The egyptians( saith one 
Phil. de 10. ) are by nature wont of little sparks to raise great flames: For the egyptians as others report of them, are men unconstant, raging, proud, injurious, desirous of novelties, and willing to change a present state wish an erroneous liberty 
Vopisc. Dio 39. 42. : And therefore it was well considered by Augustus and Tiberius Emperours, that no Senator, that is, no noble nor mighty man should govern egypt, or should go into Egypt 
Tacit. annual. 2. . But that Princes may command the due observation and practise of Religion, according as God infourmeth their consciences by the rules of his sacred word, and the instruction of his true teaching spirit, in their realms, dominions, and kingdoms, wherein they haue absolute power, and may with severe punishments correct the frowardness of men addicted to strange usurps, may by the united practise of all common weals be convinced. A king saith Aristotle in ancient time was the governor in warres, the Ruler in judgements, the maintenour of Religion 
Politic. lib. 3. c. 11. et 5. . This hath been observed of the assyrians, Persians, Medes, Iewes, grecians, romans, and all other the most eminent Nations of the world 
justin. Procop. Cursius. Varro. D. August. 3. 4. 5. et 6. de civit. dei. . And so it is reported in Scripture of Asa, that he took away the altars of the strange Gods, and the high places, and broke down the Images, and cut down the groves, and commanded judah to seek the Lord God of their fathers,& took away out of all the cities of Iuda the high places, and images; therefore the kingdom was quiet before him 
2. Chronic. 24. . And justinian the Emperour speaketh imperiously: We command( saith he) the blessed Archbishops of Rome, Constantinople, Alexandria, Theopolis, and jerusalem, to receive for ordaining and installing of Bishops, onely that which this present law doth allow 
novel. constit. 123. . Archadius setteth down both law& punishment in some cases of religion. If any Bishop refuse to communicate with Theophilus, Atticus, and Prophyrius, he shall lose both his Church and his goods: if any that bear office, they shall forfeit their dignity: he shall lose his service: if any of the common people, let them be fined and exiled 
Nicephor. li. 13. c. 30. Sozome. lib. 8. c. 24. . I will not insist longer vpon a matter plain, but will cut off these lines to avoid tediousness.   
FINIS.   

faults. leaf. Corrections. Agree fol. 4. a. disagree ar fol. 6. b. is prescribe 9. b. proscribe Dominus 13. b. dominus soundly 20. b. fond and 21. b. one Aroutius 24. a. Acontius repeated 24. b. reproved ar less 38. b. at least Cluitius 38. b. Cluilius victoria 41. a. victory Bataeri 42. b. Bataui farelet 43. a. forcelet repelit 44 b. repetit Latinum 54. b. Latium indice 54. b. judice convey 64. a. courage cibicall 64. b. ciuicall Fulminea 77. b. Fluminea Clesoninus 77. b. Cleonymus ipsas 81. a. ipsus Viriallius 83. b. Viriathus discerned 84. a. defended ( There want these words) 90. a. if any soldier.