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 divers 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 FULBECKE. 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 upon the case. 16. a 3. Of Debts. 27. b 4. Of Accounts. 41. b 5. Of Waste done in a man's ground. 49. b 6. Of Parceners. 55. b 7. Of Conditions. 58. b 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 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 have persuaded and encouraged me to make further progress in this business, lest 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 upon the shoulders of Hylas, I have again adventured upon this cumbersome province, and drawn other furrows in this stony soil: and as I have continued the work, so have 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 practic of my contemplation, to publish and notify to the world my dutiful thankful and zealefull affection toward your grace's person, then by the unfeatured lump and disproportioned bearewhelpe of my misconceyving, & 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 goshawk, 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 be exquisite, whose pains extreme, whose reward excellent: for mine own part though I be rather a rash than 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 Heavens would sympathise with my heart, and my heart should not by pleasing myself, and others, displease your Grace, the very Heavens 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 Learnings' 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 than common wishes implore the same. What period can be better than prayer? Therefore here I cast anchor, and bind up these spreading lines. Your Grace's most humble to command: WILLIAM FULBECKE. The Introduction to the second part of the Parallel, or conference of the Civil Law, the Common Law etc. 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 cold 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 rumoured in the country where Nomomathes dwelled, that such a conference was had: and afterward certain copies were dispersed, and diwlgated, 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 Parson, 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 minds as they conceived of the conference. Their purpose they followed, and to the house they came, where being kindly and courteously 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. last 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 spoke the Parson, 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 have Parsons said he, have much impediment by Prohibitions, and many times wrong, when they come to trial: for the country people which are the jurors, who have no more desire to pay their Tithes, than 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, are as sure to pass against the Parson, 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 have 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 toothache, (the Canonist here being somewhat choleric interrupted him, and said he jangled: 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 have kept decorum, but should have thrust his sickle into the harvest of Codicgnostes, if he should have encroached upon 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 have 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 worship's favour a poor country yeoman, dwelling near a place called Aitipolis: and my years are more than my knowledge, my patrimony better than my education, and my hand more nimble than my tongue: And I have had a very great desire to have some understanding of Law, 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 neese it is perfit law; when they dream it is profound law. The book of Littleton's tenors is there breakfast, their dinner, their boier, their supper, and their rere-banquet: Every ploughswayne with us may be 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 believe, that all is gold, which glistereth: So that for a man to be amongst them, and to have living and want Law: is as if a man should have 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 upon the dial of common wrongs, and trespasses: I wondered that he which maintaineth the Common Law, amongst his common wrongs and trespasses, he spoke nothing of Waste done in a man's ground: and very little of an Action upon the case, which is a wheel much turned about in the place where I dwell. And though he hath delivered much of jointenants, 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 be ten years old, or thereabout: But I pray you sir at the next conference let us have somewhat of these matters, which I have mentioned unto you: When he had ceased to speak, Nomomathes gravely and with advise censured their censures, and spoke in this manner. I see now (said he) the proverb to be verified Quot homines tot sententiae. there be as many minds as there be men; And though ye have 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 upon me, who might have 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, than 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 relish 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: therefore I protest unto you in sincerity, that if all these things, which you have mentioned may be cast in the mould of a tripartite discourse, the second conference shall bring forth that which you have 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. Then the Canonist said, that they might be discoursed upon according to the several laws under the title of prohibition. That title them said Nomomat. shall be the first: the second of actions upon the case: the third of debts, the fourth of accounts, the fift of waist, the sixth of parceners, and the seventh of conditions, wherefore bend yourselves wholly to this task, and let these things be diligently searched & considered of you, and for this purpose take the deliberation of twenty days: which being had, and the twenty days 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 1. Division. very desirous Canonologus, to know the first and primigenial existence of Tithes: 1. The original of Tithes is inquired of. that their original being known, their lawfulness, and necessary use may appear, which hath not seldom by divers objections and quarrelous surmises been shaken, and some have engaged themselves so deeply into this controversy, that they have suffered great affliction therefore, if not loss of life. 2. The council of Constance is said to have condemned Wiclif, for holding Tithes to be pure alms. Canonologus. 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 have been burnt aa Rebuff. in tractat. de Deci. 5. qu. : for that which belongeth to God may not at man's pleasure be derogated, detracted, or diminished. Nomoma. Yea, but how do you prove 2. Division. that they belong to God? Canonol. I can easily prove that by their 1. The original of Tithes is demonstrated to be by the Law of God. original and lawful institution of them, which was thus: God hath set down this rule in Exodus: Decimas & primitias tuas non tardabis offer a Exod. c. 22. . And in Leviticus more particularly he hath appointed the payment of Tithe: Omnes decimae terrae, sive de pomis arborum, sive de frugibus, domini sunt, & illi sanctificantur b Levit. c. vlt. . Neither is that dissonant which is written in the proverbs of Solomon: Honora dominum de tua substantia, et de primitijs frugum tuarum da pauperibus c Proverb. 3. . Tithes certainly 2. God his deputies for the receipt of Tithes are set down. are God his tributes; and as the Canon saith, are given him in signum specialis dominij d c. cum non sit 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 serviunt mihi in tabernaculo foederis e Numb. c. ulti. . The reason is set down by Ezechias: possent vacare legi Dei f 2. Paralipo. c. 13. . And by the apostle Paul: Qui altari seruit, de altari vivere debet g 1. Corinth. 9 . And of paying Tithes, the very Heathen 3. The Heathens which knew not God, had great regard of paying Tithes. which knew not God had great regard, as may appear by Pliny's 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 Priests 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 h Plini. lib. 12. c. 14. . And the Romans did pay such a Tithe unto Hercules. And they accounted Lucullus, 4. Lucullus is specially commended for paying Tithe. who was very skilful of their Laws and customs to have 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 i Alex. lib. genia. 3. c. 22. . And when Veios' being taken, gold should have been sent to Apollo of Delphos, in the name of the Tenth of the pray which Camillus had vowed unto 5. Camillus is likewise commended for his diligence in procuring Tenth to be paid. him, 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 k Livi. lib. 5. . And Pliny likewise testifieth, that the Romans 6. The Romans careful in paying first fruits. did not taste, nor make any use of their new corn or wine, until they had given their first fruits unto the Priests l Plini. lib. 18. c. 2. . And Pharaoh in the time of the great famine of Egypt did allow to the Priests a certain livelihood of corn out of the barns m 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, ut sit cibus in domo mea, & probate me super hoc n 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, than such as profanely and injuriously detain them: Cura dijs dij sunt, et qui coluere colentur. o ovid. in Metamorph. And there is a good similitude or observation collected by Rebuff upon 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 Mice, 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 p Rebuff. tractat. de Deci. qu. 15. . Nomomath. If Parsons ought to have tithes as you have plainly proved, than they ought to be contented therewith and not to have any lands or tenements, which now they have: for 3 Division. 1. Whether Parsons ought to have no more living than tithe. 2. It is denied by Canonologus that they ought to have no more living. as there is an affirmative precept in the law of paying tithes: 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 Leviticus & by the 27. and likewise by the 25. Chapter, where it is expressly said. Domus urbium Leviticorum pro possessionibus sunt inter filios Israel, suburbana autem eorum non veneant, quia possessio sempiterna est. Nomomath. Whether by your law may a man prescribe in not paying tithes. Canonol. No man by our law may prescribe 4. Division. in not paying tithe: q Dom. in c. 2. col. ill. de prae. in. 6. and a man is bound to pay tithe though by an hundred years he have not paid, because if it be an offence to pay slowly, it is a greater offence not to pay at all: r c. decim. in princip. 16. qu. 1. and the longer the tithes are withheld, the offence is so much greater, because as the reason of our law is: diutius detinent infaelicem animam alligatam: s c. fin. de consuetu. but a lay-man may prescribe in paying a special portion in am of the whole tithe as to pay the twelfth part, or the twentieth part. t Part. parisconsil. 25. vidiat. 3. nu. 21. vil. 4 Yet if the Minister or Curate may not be maintained by the residue of the Tithes, he may sue for the whole Tithe u Augel. 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 void: otherwise it should be if the composition had been that he should pay a certain portion of tithe, as the sixteenth 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: a 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 have said our 2 The civil Law agreeth thereunto. law agreeth, & we have an express rule: sacerdoti petenti decimas non potest obijci compensatio. b Ludovic. de Rom. in singular. and the reason is because fisco petenti tributa non potest obijci compensatio c l. 3. & 4. c. de come. pen. le. aufert. §. qui compensati. ff. de iu. fisc. . Therefore much less may compensation be objected in tithes, quae deo debentur. d Gazalup. in ver. Decim. Anglonomop. But by our law if a man grant 3 By the common law a man may prescribe in paying a temporal recompense in am of tithe. parcel of his manor to a parson in fee to be discharged of tithes, & he maketh an indenture thereof, & the parson by assent of the ordinary granteth to him that he shall be quit of the tithes of his manor for this parcel of land, now if he be impleaded for the tithes thereof he may have a prohibition, and if this deed have been made from time out of mind, and he hath been continually quit of the tithes of that manor he may have a prohibition in such case, if he be impleaded: and so likewise it is if such discharge grow by reason of a composition. e Fitzher. N. B. 41. G. 43. K. 8. E. 4. 13. Nomomath. I pray you let me know in what 5 Division. 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 1. Two sorts of tithes are set down by the canonist: some feudal, some Ecclesiastical. men of the first by your favour I will speak first, & then descend to the other: when the right of tithes is in question, because that is a mere ecclesiastical subject, the church hldeth conusance, 2. The Church only holdeth conusans of the right of tithes. f gl. in c. ex tenor. de for, compe. & there is an edict made by Phil. the 4. K. of France touching tithes in this manner. De 3. The King of France his edict touching tithes is set down. cognition decimarum non feudalium in petitorio vel postestorio, praesertim inter ecclesiasticas parts, gentes nostrae se nullatenus intromittant. g Rubric▪ de▪ decim. And this 4. When the question is facti and not juris the examination of tithes may belong to a lay judge. is according to the rule of our law de causa spirituali solus ecclesiasticus cognoscit ubi quaestio sit juris. h c. tuam de ordin. cogniti. but where the question is facti, & not juris the examination of the cause may belong to a lay judge. i Text in Clen. dispendios. de judicum c. teter. de iur. 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 be discussed before an ecclesiastical judge, k Abb. c. literas & rubric. de iudic. 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: l Gemin in c. vlt. in fide for. competen. in 6. gloss. in c. vest. 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 be decided by an Ecclesiastical judge m Navar. in repet. cum contingat. . Neither may lay men Clergy men though it be merely possessory: yet it belongeth to an Ecclesiastical judge. be compromittes of a decimal cause if the right come in question: n Concil. Barrel. tract. mother. de compromis. §. 2. gl. 1 num. 324. but such tithes as be not spiritual, but as I have termed them before feudal, may be ordered and disposed by lay compromittees. Nomomath. You have satisfied me Canonologus touching the point of Ecclesiastical jurisdiction where spiritual tithes are to be demanded: Now I pray you show me the nature 6. Division. and original of these feudal tithes, which as yet are more obscure. Canonol. Their nature shall appear by 1. The nature of feudal tithes is opened by the Canonist. their original which was thus. Charles Martell 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 years after there was seen upon his ●. The Cano●●●t 〈◊〉 a strange tale of Ch●●l●● Mar●●ll. grave a great serpent, it might be it was the devil 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 G●●●●●g●i. in v●●. Car. Ma●●ell. to the devil: for that cause the wiseman hath said, it is a destruction for a man to devour that which was sanctified, etc. nn Proverb▪ c. 20. v. 2●. 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 than 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, and I think 〈…〉 thought of Nomomath. to be but a fable. 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 law 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. We have a rule in our statute-law not much differing from the edict of the King of France above recited by Canonolog. In decimis 5 One of the ancient statutes of England is compared with the edict of the king of France. & mortuarijs quando sub istis nominibus proponuntur, prohibitioni nostrae non est locus, dummodo decimarum illarum quantitas non ascendat ad quartam partem bonorum ecclesiae o Artic. cler. 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 6 The Canon law agreeth with the common, attributing of the division of the right of tithes to the spiritual judge. de petitorio and not the possessorio, M. Fitzherbert hath this assertion: that if any parishioner do disturb or hinder a Parson 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 accustomed, the Parson or Vicar may sue in the spiritual court for this disturbance p Fitzh. N. B. 51. A. : for in this case the spiritual Court proceedeth unto excommunication q Registr. 46. b. & 47. a. : One Parson may sue a spoliation against 7 Where one parson may sue a spoliation against the other in the spiritual court. an other in the 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 be understood where the said tenth doth not amount to the value of the fourth part of the Church, for otherwise the party grieved may have an Indicavit because the title of the patronage may come in debate: But if they claim by the presentment of one patron them a spoliation may be sued although the profits or tithes do amount to the fourth part, or third part, or the moiety of the benefice: because in such case the title of the patronage shall not come in debate. And if a prohibition be sued hereupon, the party may have a consultation r 2. H. 7. 12. Br. prohibit. 16. Fitzh. N. B. 51. C. 37. E. 45. B. 30. E. : and if a man have certain sheep depasturing, and lying within the precincts of the parish of N. within a year, the parson 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 have a consultation s Fitzh. N. B. 51. D. : for the suit for tithe doth properly appertain to the spiritual Court, as by statute 8 The executors may be sued in the spiritual court. it is ordained t 1. R. 2. c. 13. 24. H. 8. c. 12. 2. E. 6. c. 13. : and it appeareth by the Register of writs, that if the pattie which withholdeth tithe make his executors and die, the executors may be sued u 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 parson may sue his executors for these tithes in the spiritual Court. And so the Parson may sue the executors for the arrearages of tithes due by reason of certain milnes of the testator in the life of the testator a Fitzherb. N. B. 51. G. H. : And the parson by prescription may in the spiritual Court claim tithes vitularum & lacticiniarum of the beasts pasturing in his parish, as namely milk, butter and cheese b Fitzherb. ib. & Regist. 48. , and the tithes of wool, and the tithes of honey and wax, c 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. d 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 years, a prohibition will lie by the statute of 45. 9 Of what trees tithe may be demanded by the statute of 45. E. ●. 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 paid. e Ploid. Com. en le case enter Soby & Mol. And the branches of trees which be privileged from tithes shall be also privileged: and the suit for the tithe branches of trees which are not privileged, shall be in the spiritual Court as well as the suit for the tithe of the trees themselves: for as Bracton saith, non pertinet ad judicem secularem cognoscere de ijs quae sunt spiritualibus annexa. f 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 parson of N. do lease for years a certain portion of his tithes rendering a rent, he shall have an action of Debt for the rent if it be behind ●●. That the rend paid for Tithes upon a lease for years is a lay chattel. at the common Law, and not in the spiritual Court, because the money is a lay chattel g 8. R. 2. Iurisdict. 2●. D. 5. 106. . And if the Parson 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 Parson shall have an action of Trespass at the common Law h 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 Parson: Yet if a stranger carry them away, he may have an action of Trespass i 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 upon which the distress may be made k 11. H. 4. 40. . But if in such case debate happen betwixt Parson and Vicar, so that the right of Tithes is to be tried, the suit is to be maintained in the spiritual Court l 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 judgement be given for the demandant, there 7. Division. ●. A Precept issueth with a monition under pain of excommunication for the due satisfaction of Tithes. must a precept issue with a monition under pain of excommunication, if he do not within a certain number of days pay or satisfy the demandant so much Tithe. And the Law is that against such as be stubborn, Brachium seculare invocari potest m Gl▪ in verb. praemonit. in cle. 2. de iud. c. postula●sti. de hom●ci. . Codicgn. We have 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 8. Division. 1. The degrees which the Canon Law observeth in punishing offences in the Clergy. degrees in proceeding to the correction or punishment of them of the Clergy, in punishing any offence whatsoever: The first is a monition, ut desistant n c. uni. de vit. et hone. cler. lib. 6. : The second excommunication, si non paeniteant o c. cler. arma. de vi. et hon. cler. : 3. A suspension of their benefice, si differant p c. praeterea de usu. : 4. The deprivation of their benefice, si perseverent q c. cum delic. in sin. de accusa. : 5. A suspension of their orders, or degrees, si obstinatè contendant r c. cum non ab homi. de in si. : 6. A thrusting or intruding of them into a Monastery, or Religious house, si indurati existant: 7. Perpetual imprisonment, si incorrigibiles existant s d. c. cum non ab homine. : 8. A solemn degradation in the presence of temporal officers t c. non de verb. in si. . 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, & is proporcionable 2. Sorts of Excommunication, are set down by the Canonist. to that lesser thunderbolt, which the Poet describeth: Est aliud levius fumen cui dextra Cyclopum, Savitiae flammaque minus, minus addidit irae tt 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 than it is penal u c. medicinalis de se▪ exco. lib. 6. . But the sentence of the great excommunication doth anathematize, and is always penal a 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 b c. cum delic. de accus. : But if he commit grievous offences, than he may be deposed c d. c. cum non ab homi. . But if he commit faults most grievous, such as by the Civil law he shall suffer death for, than he may be condemned ad perpetuam carcerem, to have imprisonment during his life d c. l. de here. lib. 6. . Excommunication is termed in our Law mucro Episcopi: and therefore it is said in the Canon law foelici mucrone Episcopi sacerdotum piacula resecentur e 16. q. 2. c. visis in si. . But the utmost punishment of a lay man for not paying of Tithes, or other misdemeanour punishable by the Canon Law is excommunication only: after which issueth a writ of Excommunicato capiendo at the Common Law. Anglo. It is true, but we have compulsory Statutes 3. The compulsory Statutes of payment of Tithes are mentioned by the Barrister. 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 etc. do for any contempt, contumacy, disobedience etc. of the party not paying his lawful Tithe, make information or request to any of the Kings most honourable Counsel, or to the justices of the peace of the shire etc. to order or reform any such person etc. that then he, or the Kings said honourable Counsel, or such two justices of peace, whereof one to be of the Quorum, to whom such information or request shall be made, shall have full power and authority to attach the said person etc. and to commit him to ward, there to remain without bail or mainprize, till he have found sufficient surety etc. to give due obedience to the proceed, decrees, and sentences of the ecclesiastical Court etc. 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 predial Tithes, before the Tithe thereof be set forth: Or willingly withdraw his Tithes of the same etc. that then upon due proof thereof made before the spiritual judge etc. the party so carrying away, withdrawing etc. shall pay the double value of the Tithe so taken, lost, withdrawn &c. beside the costs and charges of the suit etc. And as to these Tithes which Canonol. hath above called feudal which we call impropriate, 4. Impropriate Tithes at the common Law, are compared with feudal tithes. it is ordained by the Statute of 32. H. 8. c. 7. that they may be demanded by a Praecipe quod redd●t. Codign. Our law 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 benefice. Anglonomoph. Then the Ordinary ex officio 9 Division. may cite him to pay them f Registr. 51. Fitzherb. nat. bre. 52. G. . 10. The Ordinary ex officio may cite men to pay Tithes. Canonol. That seemeth not to be repugnant to our Law g Goodal. lib. de lib. Eccles. . Codign. Nor to ours. Nomomath. Now that you have 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 10. Division. 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 h Cle. 1. §. porro de sum. trini. : for where there is error, but not obstinacy, there the party can 1. Two Sorts of Heretics, formatus and suspectus. not be said to be formatus, but suspectus haereticus, and then he holdeth the error inquisitive, but not adhaesive. 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 i 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 father's heresy k c. Vergent. in sen. de haeret. c. ut inquisit. de hear. lib. 6. , 2. If they have been so long in possession 2. In what case the wife and children of Heretics shall enjoy their lands. that they may prescribe l c. ut officium de hear. lib. 6. . But the dowry of the wife of an Heretic is not forfeited, unless she do marry him knowing of the heresy m c. de creu. eo. tit. lib. 6. . Codicgn. Our Law agreeth to that which you have said: And further prescribeth an other punishment, which you have not mentioned against such offenders: for it saith, that they shall be burnt alive n l. quisquis C. ad l. jul. mayest. Et c. ut inquisitionis de heretic. lib. 6. . Nomomath. Yet I have read in a learned Civilian, that in the whole body of the civil 3. Heretics by the civil Law not punishable by fire. 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 ignivomos canonistas o Alber. Gentil. lib. lecti. 2. . Codign. Indeed our Law as to that point is wholly grounded upon the Canon oo c. ad abolend. de heretic. . Canonolog. It is not grounded upon 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 4. The Canonist posteth the punishment of Heretics to the common Law. time, he that was to be burnt for Heresy, was first to be convicted of the same before the Bishop of the diocese etc. and aught to abjure it: And if he did after relapse into it again, and were thereof condemned in the said Diocese: then he should be sent to the secular power to do with him whatsoever should please the king ooo Fitzherb. nat. bre. 269. . But afterward by the Statute of 15. of king Henry the eight p 15. H. 8. cap. 14. , it was ordained, that he who had once abjured heresy, and was relapsed, 5. The professor of the common Law bandeth back again the punishment of Heretics to the Canon Law. 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 upon the Canon Law, and the sentence of the Bishop framing the style of his judgement according to the Canon Law. Canonol. The secular power putteth him to death: but we are discharged of it. Nomom. Nay verily, no more than Nabuchadnezer can be acquitted of exposing the life of Daniel to hazard: for he might as well have 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 grate: so neither do ye personally thrust these which you term Heretics into the fire, nor bind them unto the stake. Nabuchadnezers' punishment I have read of, which was grievous and horrible: But I do not read of the admittance of such excuse. And when the judge of judges shall examine such fiery proceed, 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 judgement have been wrongful and unjust. It will be like the excuse that Philip king of Macedonia made, when he was charged with the expugnation and overthrow of the City of Chius: Nequè ego Chium expugnavi, sed Prusiam socium & amicum expugnantem adiwi q Livius lib. 32. : for so Prusias might have 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 none inflict the wound, but did will and command others to do it r 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 usa manu rr ovid. Faster. 3. . But I will insist no more of this matter. Now 11. Division. resolve me, whether any Churchland be demaundable at the Spiritual Law. Codicgn. Religious houses and lands belonging 1. What things may be termed Churchland by the Civil Law. unto them deputed to holy use are comprehended in our Law under the name of Churchland or living: 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 Churchland or Church living s C. de epis. & cler. in lib. Orpha. : Likewise that plot or parcel of ground in which a dead man is buried, or wherein his head or any part of him is buried becometh consecrate, and religious, and therefore cannot be mortgaged nor pledged t ff. de reli. & sump. fune. C. quae res oblige. poss. l. 1. : and of such lands our law taketh notice and holdeth full jurisdiction. Canonol. But in strict reason such things do belong to the jurisdiction of the spiritual court u 42. Disti. oratorium. . Anglonomoph. These matters are diversly taken in our law: for in action of trespass conceived by the Vicar against the Parson 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 2 Of Churchyards the spiritual court shall hold jurisdiction by the common law. plaintiff, it was held by the better opinion that in this case wherein the close supposed in the writ is admitted by both parties to be a churcyard, the spiritual Court only should hold jurisdiction a 13. R. 2. iurisdict. 19 . And an assize likewise was brought of a house against a Parson, who pleaded in bar, that he was Parson of P. and that the house demanded was parcel of his said church, from time out of mind, and that there was sepulture of dead persons there: wherefore Perseiss opinion was that the court temporal ought not to hold plea in this case b 44. Ass. pl. 8. : but if 3 The right of glebe land is triable by the common law. the Parson of A. and the Parson of B. do contend in suit for a parcel of land, the one claiming it to be his glebe, the other his: it hath been held in this case, that the spiritual court shall not hold jurisdiction c 19 H. 6. 20. . And Bracton likewise affirmeth, that a thing given in frankalmoigne remaineth lay fee d Bract. li. 5. c. 16. : and by 4 Lands devised not subject to the jurisdiction of the ecclesiastical court. our law a prohibition lieth for chaunteries, chapels, prebends, and vicarages e 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 have a prohibition: and therefore as Bracton saith, the devisee may enter without the 5 Suits for chattels real must be in the spiritual court. licence of the executor f Bracton ubi supr. Perk. tit. devis. : but if a devise be made of goods, and chattels real, as of a lease for term of years, or of a ward, there the suit must be in the spiritual court g 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 h 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 than they shall have an action of trespass at the common law i 4. H. 3. prohibit. 28. : but if a man sue another in the spiritual court for a rent reserved upon a lease of tithes or offerings, a prohibition will lie in such case because it is a lay rend k 44. E. 3. 32 . Nomomath. Let me now know Canonol. when 12. Division. a man granteth to one ius patronatus of the church of Dale, if this title be controversed in question, whether shall the ecclesiastical court or temporal hold jurisdiction. Canonolog. Surely I think it is determinable 1 That ius patronatus by the Canon law is determinable in the ecclesiastical court, and that it passeth by the word ecclesia. 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 l c. quod autem de iur. 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 men's bodies is celebrated m 34. E. 1. quar. impedit. 187. . And M. Fitzherbert saith, that by this word ecclesia is meant only a parsonage n Fitzh. N. B. 32. G. : and therefore if a presentment bemade to a chapel as to a church, by the name of this word ecclesia, this doth change and metamorphize the nature of it, and maketh 2 The divers significations of the word ecclesia at the common law. it presently a Church o 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, therefore if a man have an oratory or chapel within his manor of Dale and he giveth part of the demesnes of the said manor to a Chaplain 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 law to force such a change p 36. E. 3. 13. . But if a writ be brought of a Church in Dale, and in Dale there be both a Church, and a Chapel, yet the writ shall stand good for the reason above showed q 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 r 8. H. 5. 4. Rolf. : and sometimes the demesnes and profits of the benefice s 45. E. 3. 4. : but very seldom, if at any time 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 benefice. And therefore Pollard 12. H. 8. t 12. H. 8. 7. Prior. de Hunting. c. doth well 3 The interest of the patron, parson, and ordinary in the church is showed. distinguish the interest of the parson, patron & ordinary as in a several thing: the parson (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 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. We rely wholly for these matters upon the Canon law which in these points is very pregnant and copious. Canonolog. It is so in deed: but by that law 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, the edifying, and 4 What things do make a patron by the Canon law. the endowment u 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 be condemned, and his goods be confiscated, yet he shall not lose his right of presenting x Gl. est. in ver. subject. § rursus in fi. c. pastor al. in Cle. de re iudi. : neither is this repugnant, that to a Church parochial he may present, to a Church collegiate the law 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 be registered a c. nobis de iur. patronat. . Yet it seemeth to be spiritual, because if a lay patron do present one, and after will vary and present another: now it is left to the arbitrement of the Ordinary, which of them he will admit b 2. dist. c. ecclesiastic. et c. quod autem de iur. patronat. : and he which is so refused by the Bishop, hath no remedy against the second presentee, but he may have 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 c Pastoralis co. tit. . Anglonomoph. Yea but the reason of that is given in our law, because the right of patronage shall not come in debate d 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 be severed either in government, or in jurisdiction: for though the patron hath aliquid honoris, as we said, because he is to have the first place in the procession e 16. q. 7. piae mentis. : yet he hath also aliquid oneris, for he is bound by our law to defend the Church from all oppressions f 17. q. 7. filiis. : and in that regard if he fall into poverty, he is to be maintained de bonis ecclesiae g 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 5 Ius patronatus is one of the proper objects of the common law. or the advowson of the Church, 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 h Fitzh. N. B. 40. I. . Now that an advowson is a tenement, & lieth in tenure, may 6 That an advowson lieth in tenure. by several authorities be avouched: and therefore a tenure ought as well to be found by office of an advowosn, as of a manor i 14. H. 7. 28. ● Bri. 17. E. 3. 10. : and a lease for years may be made of an advowson, and if the lessee alien in fee, this is a disseisin to the lessor k▪ 7. E. 3. 11. : and 15. H. 7. all the justices agree, that an advowson lieth in tenure l 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 m 21. E. 3. 31. 20. E. 3. Estoppel. 187. . And generally upon any surmise, that a man is sued in the spiritual court for a temporal thing, a prohibition will lie n Fitzh. 43. h. . Now the advowson is temporal, though the admission & institution be spiritual. Nomomath. Let me ask you further this question: 13. Division. if a man swear to me that he will make me a feoffment 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. No: for if you do, a prohibition 1 Punishment pro laesione fidei concerning a temporal act, is not to be adjudged in the ecclesiastical court. will lie by our law, because the act which is to be done is a temporal act, & is to be tried by the common law o 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 p Fitzh. N. B. 42. F. 11. H. 4. 88 prohib. 12. : but if any perjury be committed in a spiritual 2 Perjury in an ecclesiastical court, punishable in an ecclesiastical court. court, there the spiritual court shall have jurisdiction q Stat. de circumspect. agate. 13. E. 1. 5. Elizab. c. 23. etc. 9 : but the Ordinary in temporal cases may punish the party which hath committed perjury ex officio, though not at the suit of the party r 20. E. 4. 10. : and if a woman have title to sue a Cui in vita, and she maketh oath to the tenant of the land, that she will not sue any cui in vita against him, if after she sue a Cui in vita, and thereupon the tenant sueth her in the spiritual court pro laesione fidei, she may have a prohibition, because the oath toucheth a temporal thing, namely land s Fitzh. N. B. 42. ●. 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 t 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 law, and an other at the spiritual law pro laesione fidei, and a writ of prohibition lieth not because they be two distinct things u 34. H. 6. 30 Br. prohib. 2. : yet 2. H. 4. is that a prohibition lieth in such case x 2. H. 4. 10. . Canonolog. But Lindwood showeth that a libel may be so framed, that no Prohibition will lie in your last recited case: as namely, the libel may be, (That the party hath damnably broken his oath, pretending that he was not bound by it a Lindw. in capit. aeter. sanctio. verb. periur. . Anglonomoph. That is but a weak support 3. Linwoods' authority touching punishment pro l●sione fidei in temporal matters at the ecclesiastical Law is not admitted. of the spiritual jurisdiction: 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 subjects to come to any place at the Citation of Bishops, ad faciend'aliquas recognitiones, vel sacramenta praestanda, nisi solùm in causis matrimonialibus et testamentarijs. And M. Fitzherb. thinketh that 4. The Barrister disproveth the general citations of Bishops ad sacramenta prestanda by the common Law. these general Citations, which Bishops make to cite men to appear before them pro salute animae, without mentioning any special cause is against Law b Fitzh. nat. bre. 41. A. . Nomomath. Why may they not use such general Citations, as well as a justice of peace 5. Nomomathes encountereth him in this point. 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 c Crompt. just. p. 131. et 132. . And if by your Law they can receive no oath but only in matters Matrimonial and Testamentary, than it must needs be intended, that though their process be general ad sacramenta praestanda, yet it is specially meant of Matrimonial or Testamentary causes: For I remember a good rule in the Canon Law to this purpose: Quando constat de lege, sufficit generalis allegatio d 28. q. 1. sicut enim in si. . But what say you to this matter of oaths Codicgnostes. Codicgn. Our Law differeth little or nothing 6. The Civil Law agreeth with the Canon, in matter of Oaths. from the Canon law in the discourse of oaths. And as the canonists, we make two sorts of Oaths, Conuentionale and judiciale: Conuentionale, or Promissorium, is when we swear de futuro that we will give some thing, or do some thing etc. e Bartol. in l. si quis ff. de si d●nstrum. . judiciale 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 f 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 juramentum, contra Canones punitur g 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 lie. The second Dialogue. Of Actions upon the Case. NOnomath. I have some time marveled Codicgn. wherefore an Action upon the case, which you term actionem iniuriarum, should not have a special name, aswell 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, etc. And in your Law there is 1. Division. Actio ex stipulatu, actio empti, actio depositi, actio de paupery etc. I pray you therefore let me know the reason hereof. Codicgn. What is more ebbing and flowing then man's invention: for some things it hath words too many, for some it wanteth names: Therefore Juvenal, 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 than the iron age, he nameth it by giving 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 Masters 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 named or signified: 1. The reason is showed 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. Stephen's his water was fit for many diseases, and yet had never any special name, but was generally 2. The Barrister compareth an Action upon the case at the common Law to D. Stephen's his water. termed Doctor Stephens his water: so likewise an Action upon the case stretcheth as a remedy against many offences: Yet it hath no other name then an Action upon the case. And it is therefore so termed, because every man's 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 a 7. H. 6. 47. : Wherefore in an Action upon 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 b 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 2. Division. 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 have an Action upon the case against the Innkeeper. Anglonomoph. Doubtless he may, if it were a common Inn in which he was lodged c 2. H. 4. 7. 5. Mar. 158. Dyer. . And if the party so prejudiced do bring an 1. An Action upon the case lieth against the keeper of a common Inn if goods be imbeasiled. Action upon the case against the host, 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 judgement given, and not the day of the writ brought. And a Capias ad satisfaciendum lieth not, because it was a laches, and no wrong d 42. E. 3. 11. : And therefore the words of the writ be pro defectu ipsius B. e Fitzh. nat. 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 upon him, and notwithstanding he will needs be harboured there at his peril, the Innkeeper is discharged f 11. H. 4. 45. per Hill. . And 22. H. 6. the difference 2. If a stranger lodge with me by my consent, and do imbeasill goods, the Innkeeper shall not be charged. is taken, that if a man do lodge in chamber with me by my consent merely, 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 servant rob me, the host shall not be 3. If my servant imbecile my goods, the Innkeeper shall not be charged by the common Law. charged g 22. H. 6. 21. per Curiam. . And 39 H. 6. it is said, that an Action upon 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 provender) to his horse without present money paid in hand h 39 H. 6. 18. . Codign. By our Law, if through the negligence 4. By the Civil Law the Innkeeper is to be charged with action, if his servants steal goods. of the servants which wait, or attend in the Inn, if any thing be stolen out of the chamber of the guest by any such servants, 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 i 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 k ff. furt. adu. nan. can. sta. l. 1. . So likewise if a man have 5. If through the default of the Master of the ship goods be stolen, the owner of the ship is to make recompense. a Ship wherein he useth to transport & convey men or goods into foreign nations, 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 lie against the owner of the ship l ff. de exercit. acts. l. 1. : for the Master of the ship is he cui totius navis, anchora, et cura commissa est m 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 n ea. l. 1. §. non autem. , and because to him the daily profits, rents, and gains of the ship do appertain and come o ea. l. §. exercitatorem. . Canonolog. I do not remember any thing in our Law contrary to that which you have said. Nomomath. I would be resolved of this Codignostes, 3. Division. whether according to your Law in all contracts there must be a mutual consideration on both sides. Codicgn. It is not necessary, that there be 1. By the Civil Law it is not necessary that there be mutual consideration in contracts. mutual consideration, but so there be a mutual consent, it is sufficient in our Law, and it is therefore called a contract: because by covenanting diversae voluntates in unum contrahuntur p Instit. de actio. §. 1. Gazal. verbo contractus. . D. Baldus noteth, that there is a triple kind 2. Three sorts of contracts by the Civil Law. of contract. A proper contract, an improper contract, and a most improper contract. The proper contract, is when both parties are ultro 3. What is a proper contract by the Civil Law. citróque bound q 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. An improper contract, is when one of the 4. What an improper contract is by the civil Law. 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 r l. Aristo. ff. de donat. canmor. . And so when one dareth to an other, he which borroweth is only bound ad tantundem reddendun s ff. si cer. pe. l. 2. . The most improper contract, is when neither 5. What a most improper contract is by the same Law. of the parties is bound, but a bond or contract is 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 servant 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 quite against the other, this transaction as we term it is a contract, though most improper t Saly. in lib. sive apud acta. C. de transact. . Likewise when a man will acquit one of money which he oweth unto him upon a contract, which in our Law is called acceptilatio: as when I say unto one with whom I have bargained: Have not you received of me all the money which I did owe unto you by way of contract? and he aunsweareth: I have 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 u Instit. qui. more. tol. oblige. et in l. ubi pactum. C. de transact. per Bar. . Anglonomoph. Our Law meddleth with no contracts, but such as you have termed proper contracts: For our Law requireth in all 6. The Common Law admitteth no contracts, but such as be proper. contracts a mutual consideration, and one part of the contract challengeth and begetteth the other. And therefore the case was thus: The servant of A. was arrested in London upon 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 upon the case would not lie 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 have been otherwise: as in consideration that you have 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 x 10. Eliz. 272. Dy. . And so whereas Oneley brought an action upon the case against the Earl of Kent and his Lady, and declared upon 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 a 19 Eliz. 356▪ Dy. Oneleys case. : and 29. Eliz. the case was such: A man being found in arrearages upon his account did promise to the dettee that if he would forbear him per parvum tempus, that he would pay him the money without further delay, and the dettee did forbear him accordingly, and after upon this assumpsit brought an action upon the case: and it seemed to three of the justices of the common pleas, that the action would not lie, because that parvum tempus was no good consideration, neither could it be beneficial to the party: but one of the justices said, that if the dettee had brought an action upon the case without any consideration alleged, and had proved the debt, that would have 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 pr 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 b 44. E▪ 3. 28. . And where two considerations are to be accomplished, the performance of them both is to be 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 paid the money by virtue of the concord before the day, and demanded judgement si actio etc. But he spoke 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 c 6. H. 7. 10. : And if I buy a horse of you for six pound, you may detain the horse till I have paid you d 10. E. 4▪ 1●. : and so if one buy an horse of an other in Smithfield and do not pay to the vendor money presently, but doth only promise it, the vendor may sell it to another immediately, and the other can have no remedy against him: for otherwise he may be compelled to keep his horse in perpetuum against his will e 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 implied, that the bargainee shall pay the money presently, otherwise he shall not have the thing sold; but if it were for a certain day, the money were not to be paid before the day, because the bargainor hath given unto him express liberty to pay at any time within the time prefixed f 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 be a certain day limited, so that one of the parties may have an action of debt for the money, and the other a writ of Detinue for the wares g 28. H. 8. 30▪ Dy. : and if a man assure and promise to one that he will make for him certain wanes for carriage etc. 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 have an action of trespass upon his case h Fitz. N. B. 94. A. : so an action upon 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 suit 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 i 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 have hired a ship or galley to transport my family, and some of my household 4. Division. 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 have the entire sum of money, or shall it be apporcioned for them, that be dead before they be brought to the land k Ludou●c. de Rom. in singulari. . Codicgn. To clear your doubt this diversity must be understood: if the owner of the 1 That no fare ought to be paid for them that die in a ship, if the master of the ship did assume to bring them safe to shore. ship did make a covenant with you, that he would bring them safe to such a place, then surely you ought to pay no fare for them that be dead l Id. in d. singu. ad regu. praedict. : but if the covenant were to take them into the ship, and to carry them to such a place, then the law will be otherwise: and so if a 2 If a child be borne in seafaring nothing is to be paid for that child. child be borne in the ship whilst it is upon the sea, there is nothing due in respect of that child m 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. n Pecki. ad reg. iur. Anglonomoph. In our law there is a case not much swerving from this purpose, if we stand not too much upon the common and verbal way to go to the end of a question, I. B. did 3 The barrister putteth a case of carrying a horse safe and sound over Humber. declare by bill that A. at a certain day and year upon 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 o 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 have 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 upon this point of contracts. Canonol. Our law doth not refuse or abiudicate 4 The cannon law agreeth with the civil in cases of improper contracts. the kinds of improper contracts, as by the report of Anglonomoph. the common law doth, for if two should contend for an ecclesiastical benefice, as namely for the advowson of a parsonage or prebend, and one of them agreeth with the other, that he shall have one turn of presenting, and the other an other turn, and so successiuè per alternas vices, here though there be no consideration properly: yet in our law this is a good contract and a good consideration: but if one of them should have given to the other twenty pound to have had the presentation wholly, & solely to himself, 5 Division. this had been void in law and simoniacal p c. si quando cleric. de offi. de leg. etc. statuimus de transac. nisi effet 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 upon 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 upon the case: for the case was 11. R. 2. that in an action upon 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 pr of a certain malady, & he took of him for it a certain sum of money before hand, in 1 That by the common law want of skill is to be punished by an action upon the case if there be an assumpsit either implicative or expressed. consideration whereof the said def. did undertake to cure the pr of his malady, who ministered unto him medicines contrary to his disease, whereby he was empeired and became worse than he was before q 11. R. 2. Act▪ sur le case 37. : so 19 H. 6. an action upon the case was brought because the def. did assume to cure the plaintiffs horse, and that he adeo negligenter, & improvidè imposuit medicinam, quòd equum etc. 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 dieth he shall not have an action, unless I had undertaken to heal him, which must be traversed: And Paston granted this, & said, that if I have a disease in my hand, and a man apply a medicine to my arm, by which negligence my hand is empeired, yet no action will lie unless he had undertaken to cure it r 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 have an action upon the case though he did not warrant the well shooeing of him: but he saith not (though he did not assume) for in deed 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 lie s 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 2 That by the civil law want of skill only is punishable. sufficient ground of action: for if in the case proposed of the making a frame of a house, it be not done well and artificially, our law is that the artificer shall render damages in toto, but if some part be well done, and some ill, so that it is evident that if the workman had used convenient diligence, all of it might have been well consummated, so that there is no default in skilfulness but in carefulness, than the workman shall not be condemned in toto, but in tanto that is for so much, as is not well done t Gazalup. in ver. ignorat. . Canonolog. The rule of our law is, that crassa 3 By the cannon law Crassa & supina ignorantia non excusat. & supina ignorantia non excusat u Ber. in c. regni. fivit. de ordi ab epi. qui resig. epi. . Nomomath. Let me know this of you Codicgnost. when one man through fraud and deceit overeacheth another, whether is this punishable in your law as a thing injuriously done. 6. Division. Codicgnost. Yes if he do cirumvent him 1 circumvention dolo malo punishable at the civil law. dolo malo. 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, and Dolus malus. Dolus 2. A difference at the civil law betwixt dolus malus▪ and dolus bonus. bonus, is when a man doth machinate or devise any thing to entrap a thief, or a traitor a 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 warfare, 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: Nil 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 b ff. de do. mal. l. 1. §. 1. , or to frustrate the Law c 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 d 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 men's backs, here is no defraudation of the Law: But if he should give iiij. pence for the carriage over the bridge, but not current money, now the Law should be defrauded e Io. in §. penult. Insti. de ●dop. . And when a man is prejudiced by the fraudulent dealing of an other man, he may by our Law have 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 have a rule of that which you have termed dolum bonum: 3. The same difference the common Law observeth. Frangenti fidem, fides frangatur eidem f 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 Solomon, 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 been 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 g 23. q. 4. qui peccat. . Anglonomoph. That deceit which of ye both 4. Dolus malus punishable at the common Law by an action upon the case, or a writ of Deceit. hath been termed dolus malus, 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 upon 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 man's money, he that loseth his money in such sort may have an Action upon the case for this deceit. And in other like cases an Action upon the case, or a writ of Deceit will lie, 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 have a writ of Deceit against him h 5. 5. E. 3. Quare impedit 37. 20. H. 6. 20. Fitzh. nat. bro. 96. A. . And in every case an action upon the case is maintenable against him which sueth an original in the name of the plaintiff against his will i 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 have a writ of Deceit against him that forged it k 19 H. 6. 44. 58. 34. H. 6. 19 Fitzh. Nat. be. 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 have pleaded a better plea, the Infant shall have a writ of Deceit against him, and shall recover the full value in damages l 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 m 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 upon the Grand cape returned: Now the tenant may have a writ of Deceit against him that recovered, and against the Sheriff for his false return n 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 judgement o 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 p 5. E. 4. 49. . And if a man recover in a writ of Waste by default, whereas the defendant was never summoned, the defendant in this case may have a writ of Deceit q 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 upon consideration to enfeoff him of certain land, and he enfeoffeth an other: he to whom the assumpsit was made may have a writ of Deceit r 20. H. 6. 36. 16. E. 4. 9 Fitzh. Nat. br. 98. F. , or an Action upon the case at his pleasure s 3. H. 7. 14. 2. H 7. 11. . And if one sell to an other a Horse which he knoweth to have a secret disease in his body: or selleth certain quarters of Grain, which is full of gravel, a writ of Deceit lieth t 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 servants of the plaintiff being his factors did accepr it, and carried it beyond the sea, whereupon the plaintiff demurred u 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 have an action of Deceit, and shall have restitution of the land uu 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 a 1. Ass. p. 16. . And whereas there be two tenants for life, the remainder to the heirs of one of them, and they both lose by default being not summoned, and the tenant for life dieth, the suruivor shall have a writ of Deceit for the whole: Otherwise it had been if the recovery had been against the tenant for life only by default b 8. E. 3. Deceit 7. . Nomomath. You have sufficiently discussed 7. Division. 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 upon such as offend by contumelious and reproachful speeches or no? and what punishment do they inflict? Codicgn. Such outrageous speeches either proceed 1. Contemptuous speeches are not punishable by the Civil Law. 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: utique si inferior is adversus superiorem est, capitali paena nemo unquam dignum iudicavit: etiam Deos aliqui verbis ferocioribus increpant, nec ob id quenquam fulmine ictum audimus c Livi. lib. 45. . The disgrace, especially of words, ireful men revenge 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 Gods have of some been reviled by insolent terms, yet we do not hear that any man hath been stricken with thunder bolt for that fault. But if the contumely do rather flow 2. Opproprious speeches which proceed of malice are punished. 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 D. Augusti. lib. 2. de civit. dei c. 12. : The Romans would not have 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 sanciendam pataverunt, si quis actitavisset sive carmen condidisset, quod infamiam faceret, flagitiumue alteri e D. Augusti. lib. de civit. dei 2. c. 9 Cicer. lib. 4. de rep. . Nomomath. Yet the Grecians did allow such 3. It is objected that the Grecians did tolerate sarcasmical speeches against wicked men. taunts and biting sarcasmical speeches, as the same S. Augustine reporteth f D. August. ibidem c. 9 . And Socrates did not take it grievously to be noted of Comedians, for which he giveth this reason: Si merito reprehenderint, emendabimur: sin falso, 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 Cleon, a man of high estate g Aristoph. in Equit. , he was so inflamed with rancour against him, that when he could hire none for money to personate Cleon, he performed the part himself, & did with such indignity & disgraceful terms abuse Cleon, that Cleon 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) revomuit quantum hauserat h Aristoph. in Acharnens. , being a tart-tounged detractor, whose works are scarcely to be read, unless a man would taste the gall of bitterness, much less to be imitated, and (as Vives censureth him well) multa per ebrietatem conscripsit i Ludovic. Vi. in comment. ad lib. 2. de ciu. de. c 9 . And whereas he was corrupted 4. Aristophanes is condemned for his bitter detractions. by money received of Anitus and Melitus, the enemies of Socrates, to scourge and lash Socrates in his comedy called Nebulae, (which the same Vives prettily termeth fabulam nebulonicam) with contumelious speeches, Socrates in this should not have been patient, because it was crimen facto non leave, exemplo admodum grave: But Plato, who was more exercised than Socrates in matters of common weal, did banish out of his common weal such railing Poets k Plat. 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 l Cicer. lib. 4. de rep. :) for he was likewise more than 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 m 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 lest tincta Lycambeo sanguine 5 The devisors and publishers of libels punishable by the civil law. 6 The canon law is severe against such. telagerant: But that I may show what our laws have 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 n ff. de iniur●●. lex torm. ent. §. si quis liberum. , and so is the author likewise punished o Azo. in sum. C. de iniuri. . Canonol. We account in our law such detraction to be summam iniquitatem, & the censure of our law is that omnis qui detrahit fratri suo homicida est p c. 1. de maledi. 6. . Anglonomoph. Our law is too charitable dealing a mother, and therefore it alloweth the administration of goods circafuneralia, though it be done by a stranger, who hath no authority to intermeddle q 21. H. 6. 28. : because it is a work of charity 7 Reprooachfull speeches punishable at the common law by an action upon the case. r 21. E. 4. 5. : but slander and diffamation, which blemisheth the good name of others it detesteth and utterly disfavoureth, condemneth, & punisheth as a stepdame unto rancour & violent speeches the abortive children of malice. Wherefore an action upon the case will lie at our law for calling the plaintiff thief s 27. H. 8. 22. : and for calling the pr a false and perjured man t 28. H. 8. Br. Acti. sur le case. 3. 30. H. 8. Br. Acti. sur le case. 104. : so an action upon the case lieth for calling the pr false justice of peace u 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 x 2. E. 4. 5. : nor to publish one to be a bastard, who is in deed a bastard, if the defendant do make title to the bastards land, and did therefore term him bastard that the matter might be produced into question and trial y 25. Eliz. Balisters case. . Nomomath. Enough of this, we will pass now to other matters. The third Dialogue. Of Dettes. NOmomath. I pray you let me know 1 Division. 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 dettor confesseth himself to be 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 deed of them both a l. servum filii. § eum qui chirographum. ff. de leg. 1. . Such a kind of writing we call instrumentum 2 An obligation may be by deed indented at the civil law. privatum, 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 have the subscription of three witnesses b C. de proba. l. : but there is a private instrument of more solemnity, which is called of 3 What instrumentum garrantigiae is at the civil law. us instrumentum garrantigiae, an instrument of warranty, upon which a man shall have present execution: as if it do specify that one man is indebted to another, this being presently exhibited in place of judgement, the judge ought presently to award execution c ff. de re iudi. : and such writings obligatory if they have any razure in them in any material place are of no credit in law d c. ex litter. in glow. 2. de fid. instrument. : and there be in our law three sorts of bonds, Naturalis, Civilis, Praetoria. Naturalis 4 Three sorts of bonds by the civil law. 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 have above spoken, wherein one of the parties confesseth and acknowledgeth himself to be 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 e Insti. de obli. in prin. . Likewise debt may accrue 5 Debt may grow by way of contract. unto one 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 f 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 utrobique obligat f Gazalup. verb. pactum. : for if the words or act be obligatory, than the contract is obligatory, as contrariwise, if the words or act tend to acquittance, than the contract is nothing else but an acquittal, as if the creditor do redeliver the writing obligatory unto his dettor, this is an acquittance in law: for otherwise the redelivery should work nothing g ff. de pac. l. labeo. : but if the creditor should redeliver a pledge unto the dettor, this will not amount to any acquittal or release of the debt, because the redelivery in that case may have an other effect, namely the use of the pledge for a certain time h l. sequent. ff. eo. ti. : And if the instrument or especialty of the debt be come to the hands of the dettor, the law will intend prima fancy that it was redelivered by the cteditor in am of an acquittance i l. si chirograph. ff. de pig. : but this must be limited with this restraint, if the dettor be a mere stranger in facto unto the creditor, but if he be his servant or one of his family, conversing in house with him, than the intendment will be otherwise: for then the law will presume that he might easily come by the bond without the privity of the creditor k l. unica. §. ille. C. de lati. li. tol. . Canonol. I have not at any time observed any thing in our law which maketh head against 6 The canon law agreeth with the civil in matters of bonds or debts. these determinations of law by you mentioned. Anglonomoph. Our law with some of these assertions fully agreeth, and from some flatly disagreeth, as I mean to manifest by examining 7 Debt may grow by contract by the common law. in order the particulars of Codicgnostes his speech. 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 avouched. For if the husband sell trees growing upon the land of his wife, and the wife dieth 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 upon the vendition l 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 upon the case, but if it be agreed, that the assurance shall be made before a certain day, and the ten pound to be paid upon the perfecting of the assurance, than the law is otherwise. For if he make not the assurance before the day, but after he shall not have an action of debt for the ten pound m 22. H. 6. 50. ꝑ Newt. . But if a tailor do make a garment for me, if we be not agreed before what I shall pay for the making, he can not have an action of debt, otherwise it is for victuals and for wine n 12. E. 4. 8. . Likewise an action of 8 An action of debt lieth at the common law for a loan of money. debt lieth upon a loan of money, made by the creditor to the debtor o Fitzh. N. B. 119. G. : or it lieth for a mere duty, as when an Attorney bringeth 9 An action of debt lieth at the common law for a mere duty. an action of debt for money expended in the suit of his client p Fitzh. N. B. 121. L. 10. H. 4. Debt 158. 3. E. 4. 29. : or upon an obligation, as when the especialty is Noverint universi me teneri etc. And after the deed 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 q 41. E. 3. 10. 42. E. 3. 9 28. E. 3. 98. . Upon 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 lie, but a writ of account only r 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, if he make an obligation 10 An obligation made after a contract dissolveth the contract by the common law. for the money, the contract is discharged, and he shall not have an action of debt upon the contract s 9 E. 4. 25. 28. H. 6. 4. 21. H. 7. 5. 1. H. 6. 8. per ●ab. 20. H. 6. 23 35. E. 3. det. 83. . But if a man make a talie, and writeth words obligatory upon 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 upon a piece of wood t 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 u 5. E. 4. 10. . And a man shall not be fined for denying a talye ensealed x 4. E. 2. en le title de fine. . And whereas you say that a man may be bound by deed indented, that is likewise so with us: 11. A man may be bound by deed indented by the common law. For if one acknowledge himself by indenture to be indebted to another man in an hundred pound: for which he delivereth him certain Velvet, that the other may sell it after the best manner that he can, and to retain 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 a 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 det was brought by the executors, & it was allowed: the law is likewise so of an account b 11. H. 6. 46. . And if the words of an indenture be so: Ita conventum est inter nos quòd A. soluat B. 20. li. ad festum Pasch. B. may have an action of debt hereupon c 30. H. 6. per Yeluert. Stath. tit. Covenant. . So when a man maketh such a bill, namely this bill witnesseth, that I A. have borrowed so much money of C. without saying more, this shall charge the executor as well as an obligation, and the testator could not have 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 be dettor, or to have a stranger's money in his hands, though it be by bill, yet it shall charge the executor d 28. H. 8. 20. Cores c. per Fitzia. et Montague. . As for your instrumentum garrantigiae, an instrument 12 A statute bond is resembled to an instrument of warranty at civil law. of warranty as you have termed it, it is fully and proportionably resembled by a recognizance upon a statute merchant or staple: for thereupon the party to whom the reconisance is made upon the certifying of the same in Court shall have 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 have it: and if a statute merchant be acknowledged to two, & one of them cometh into the conrt with the statute he shall have execution in both their names e 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 showed forth the testament and prayed execution, and had it f 17. E. 3. 31. ; But the opinion of Hill is to the contrary 18. E. 3. for a Ceciorari was sued upon a statute merchant, and before execution the plaintiff died: wherefore green prayed execution for executors; But Hill said, that he should have 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 certificate g 18. E. 3. 10. . And upon a statute staple the party shall have execution of the body, lands and goods by one writ: And upon a statute merchant, first a Capias till a quarter of a year be past, and upon a return of Non est inventus, the party shall have a writ to have execution of his lands and goods h 15. H. 7. 14. Fitzh. Nat. bre. 131. D. . And a man may sue an action of Debt upon a statute staple, upon a statute merchant, and upon any other recognizance i Fitzh. Nat. bre. 122. D. et fol. 17. . And whereas you have said, that a deed razed 13. A deed razed is not good at the common Law. is not good in your Law, no more it is in ours, if it be razed or interlined, and in such case the obligour may conclude his plea, if he be impleaded in an action of Debt, with a Non est factum k 1. H. 7. 14. Doves C. per Keble. . And whereas you have affirmed that there be three sorts of bonds in your Law, Naturalis, Civilis, and Praetoria: For the first 14. The common Law agreeth in substance with the Civil Law in the three sorts of bonds. two I have showed 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 upon a recovery or judgement containing the debt. For if a man recover damages in a writ of Waste, he may sue a writ of Debt upon this recovery, if he will l 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 m 43. E. 3. 2. . But in that you said that 15. The common Law dissenteth from the Civil, in not making the redelivery of, a bond an acquittance. the redelivery of a writing obligatory unto the obligee is in steed of 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 steed of an acquittance m 1. H. 7. Dones C. per Fin. : Yet it is better answered by Mast. Keble, that a redelivery may be either of a deed executory, or a deed executed: The redelivery of a deed executory hath some operation in Law n 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. upon 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. upon a condition performed o Perkins tit. Faits. :) Now the redelivery of it nequè ligat, nequè soluit, worketh nothing: because a deed can have 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 p 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 redelivereth the deed of release to the disseisee, and saith that he will not have advantage of it, yet this is to no purpose: for by the release executed no right may be 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 q 1. H. 7. Dones c. per Vavisor & Keble. . (But if the disseisee re-enter upon the disseisor, and the disseisor bringeth an Assize, and hath not the deed of release ready to entitle himself to the land, the other may still hold possession of the land: but then the redelivery of the deed of release doth him no good directly, but only per accidens, because the want of it doth hurt to the disseisor.) Nomomath. Now I pray you resolve upon 2. Division. 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. The making of an Executor, which 1. By the Civil Law the Executor succeed in universum ius desuncti. 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 r C. de hear. 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 s Isiodor. li. 5. . And such Testaments must be insinuated to 2. Insinuation of a will necessary by the civil Law. the Official or Commissary of the Bishop of the Diocese within four months after the death of the testator: which insinuation is appointed by Law, Ad evitandum falsitatem, et sciendum veritatem Testamenti t L. jubemus. C. de test. l. si. C. de fideicom. . But de iure Praetorio though a Testament be not made, yet some person may be appointed by the Praetor to administer the goods u 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 than 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 uu cum Io. de si. instru. . And the Inventory ought to be begun by the Executor within 30. days after the death of the testator, or at least within 30. days after that he hath notice that he is made Executor: and it ought to be finished or consummated within thirty days 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, than the goods will stretch: otherwise he shall be charged in solidum for the whole debt d Gazal. in verb. Inuentar. . Canonolog. These things which you have proposed are not rejected of us, but are of validity in our Law. Nomomath. I pray you Anglonomoph. rip 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 have you studiously and with care to discuss these things. Anglonomoph. In the substance of these matters 4. The power of the Executor dependeth wholly upon the will of the Testator by the common Law. 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 dissonancy, and variance. First to speak of the power of an Executor by our Law, it dependeth wholly upon 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 have 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 e 35. H. 6. 36. . And 4. H. 6. in an action of Debt brought by the Executors upon an Obligation, the defendant demanded oier of the Testament, and he had it, and the plaintiff showed forth a Testament nuncupative, 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 f 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 g 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 h 37. H. 6. 30. 11. H. 4. execute. 58. per Thirn. . And the executors do so fully, and vivelie 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 have both pleas, because they did represent their testator, who could have but one only plea i 37. H. 6. 30. 7. H. 4. 13. . But it seemeth by the book of 8. Ed. 4. that they shall have several pleas, and the most peremptory shall be tried k 8. E. 4. 24. Execut. 31. . And an executor or administrator may have a writ of Error upon a judgement given against their Testator concerning debt or damages l Fitzh. Nat. bre. 21. M. . And that a testament and a devise 5. According to the common Law a Devise is of no force until the death of the devisor. are of no force till the death of the devisor, may appear by divers good authorities in our Law m 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 Bishop's 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 n 7. H. 4. 18. 10. Eliz. Com. Brets c. et en Greyst. case. . And the Ordinary may sequester the goods of the dead, until the executors have proved the Testament: And the Metropolitan may do the same, if the goods be in diverse dioceses o 9 E. 4. 33. . But our Law differeth from the Civil Law in this, that the administration of the goods of him that dieth 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 have a writ of Debt against the Ordinary by the statute of Westminster 2. cap. 19 p Fitzh. Nat. bre. 120. D. . and in this case he must be sued by the name of Ordinary q 9 E. 4. 34. . But after administration committed the Ordinary shall not be sued r 8. Elizab. 247. Dy. . And if Sede 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 only: Otherwise it is if the Dean and Chapter as Ordinary should use an action s 17. E. 2. Bre 822. . And so if the Ordinary make his executors and 7. That an action of Debt will lie against the Ordinary. die, the Creditors may have an action of Debt against the executors of the ordinary t Fitzh. N. B. 120. D. Vieux Nat. br. 61. : though 11. E. 3. in the title of Executors be directly to the contrary u 11. E. 3. Executors 77 . But a man shall not have an action of Debt to charge the Ordinary (as Ordinary) unless he do administer in his own diocese uu 12. R. 2. Administr 21. . But the Ordinary can not have 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. ann 31. ca 11. the administrators could not have an action of Debt: therefore it seemeth before that time the Ordinary might have used an action of debt, otherwise remedy should have failed a Fitzh. N. B. ibid. . but the Ordinary may & might at all times have had an action of trespass for the goods of the dead taken out of his own possession b 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 c 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 shallbe punished as an executor of his own wrong d 9 Elizab. 256. Dy. . neither can he commit administration by word of mouth, otherwise it is if it be entered into his register though letters of administration be not formally drawn e 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 f 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 law they shall not be further charged, our law 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 g 7. H. 4. ●0. Ploughed. come. 277. : for though he do pay debts upon contracts, the writ depending against him upon a bond, whereas he had no notice of the suit, he shall not be in such case charged h 2. H. 4. 21. . And 3. H. 6. in an action of debt upon an obligation of twenty pound brought against executors, they pleaded riens enter manes, 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 judgement to recover so much as was found of the goods of the dead, and the damages of the goods of the executors for their false plea i 3. H. 6. 4. . But in Davises' Case in the Commentaries it was otherwise ruled that nothing should be put in execution upon such a plea but only the goods of the dead k davis. C. come. 440. . But in a Fieri facias upon a recovery against executors the Sheriff returned a devastaverunt, wherefore the Court did grant a writ to have execution of the goods of the dead, and if there were no such goods, then of the goods of the executors l 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 in certain how much they had administered, because they shall not be charged but only according to that which is found by inquest m 40. E. 3. Statha. tit. executors. . But it was said 34. H. 6. that when the executors do plead (fully administered, but only for so much) & their plea is found, the plaintiff shall have judgement to recover all his debt, but he shall not have execution but only of the goods in their hands n 34. H. 6. stath. tit. Execut. . But it is good to be considered what may properly be said assets in the hands of the 9 What may properly be said to be assets in the hands of the executors. executors: if the executors do merchandise with the goods of the testator, the increasall of them shall be assets in their hands, and shall charge them, and they cannot plead that they have fully administered when they have such assets o 11. H. 6. 35. per Bal. . 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 p 18. H. 6. 4. . (But than 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 have 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 q 6. H. 8. 2. Dy. . But it was held by M. Fitzherbert 27. H. 6. that where a man is indebted 40. pound to one, and 30. li. to another, & dieth; and hath but 40. li. and his executors or administrators agree with the creditor of 40. li. for 10. li. and have an acquittance of the 40. li. yet the thirty pounds which remaineth in their hands shall be assets r 27. H. 8. 6. per Fitzh. . And so a gage being ransomed shall be assets in their hands, but according to M. Frowikes opinion it shall not be assets if it were ransomed with their own money s 20. H. 7. 2. : But as M. Brooke noteth well abridging the case abovesaid of 20. H. 7. the money which cometh in am of a pledge, being gauged to their testator shall be assets in their hands. So it hath been adjudged, that if a man make a feoffment upon 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 adjudged assets in his hands t 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 u 7. E. 4. 8. per Littlet. & Danby. . Nomomath. You have satisfied me for this point Anglonomoph. Now I pray you Codicgnost. strain your endeavour a little to resolve me upon point of execution to be sued upon these debts. I have 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, his body was mangled and cut in 1 The rigorous law of the Romans in their execution for debt. 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 x Paul. Manut. lib. de legi. Roma. : which law beside the monstruousness 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 parts of the bodies of their debtors to dogs, 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 upon his deathbed, his friends which were then about him, asked him in courteous manner, where he would be buried, he thinking perhaps that a man was nothing but a mind, answered them that he would be buried in the dunghill, and they replied that that would be very inconvenient: for the dogs would then rake him up and devour him: Then (said he) lay some staves by me to beat away the dogs; but they told him that he could have no sense in his body after his death: then (quoth he) what need I fear the dogs. 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, shame, and indignity that a man's body should not be buried, wherefore Lucan sharply inveigheth 2 The execution of the Romans greatly to be reproved, because it did deprive men of burial. against Caesar: Tu, cui dant paenas inhumato funere gentes a Luca. lib. 7. : And it is the judgement of all antiquity that without very heinous fault the parts of a man's body should not be 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 upon the hearse himself: for as the Poet saith h Oui. Fasto. 4 : Dat tamen exequias, neciam suspendere fletum Sustinet, & pietas dissimulata patet: Osculaque applicuit posito supremaferetro, Atque ait: invito 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 uxorem, tu hostem luges. jam in acie stars, nisi cura tesepulturae eius moraretur c Curti. li. 4. . And Solomon saith divinely: If a man beget an hundred children, and live many years, and the days of his years be multiplied, and his soul be not satisfied with good things, and he be not buried, I say that an untimely fruit is better than he d Ecclesiast. c. 6. v. 3. . Then surely (that I may recourse unto that from which I digressed) for the Romans to add shame to affliction, and when the hard debtor is not able to maintain himself with meat and apparel in any reasonable sort, after strait 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 have nothing but domi inopiam, foris aes alienum, malam rem, spem multo asperiorem, & nihil reliquum praeter miseram animam e Salusti. in Catiline. . The Lord in his year of jubilee signifieth his pity toward decayed persons. Septimo anno facies remissionem, quae hoc ordine celebrabitur. Cui debetur aliquid, ab amico vel proximo, ac fratre suo repetere non poterit, quòd annus remissionis est domini ee Deuteron. c. 15. . And to prevent the cautelous sophistry of miserable worldlings he giveth this caveat. Caue ne forte subrepat tibi impia cogitatio, & dicas in cord tuo: appropinquat septimus annus remissionis, & avertas oculos tuos a paupere fratre tuo nolens ei quod postulat mutuum comodare, ne clamet contra te ad dominum etc. Augustus Caesar that wise Emperor 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 wars 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 f Dio. Nicae. in vit. August. Carol. Sigo. in fi. lib. fast. & triumph. Roma. . Mercy doubtless, and pity is to be extended to such as have nothing to help themselves withal, & therefore do not pay debts, because they can not: Non manca est voluntas, sed potestas mutila. To such I say mercy ought to be exhibited. The richest man in the world, be he never so good, is a greater debtor to God, than 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 Tiberius to one that requested death, rather than long imprisonment: Nondum tecum redij in gratiam? Blessed are the merciful for they shall obtain mercy g Mat. 5. v. 7. . I speak not this as if favour should be showed to covetous churls, which had rather lose their bowels than 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 days, do defer it ten years. It were a blessed thing, if the bodies of such miserable Midass' 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. Divexet coruos, parcat censura columbis. Let them use mercy to such as be humbly minded, and anguished in heart, 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 man's 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 pius: tu Spartace lenis g Claudi. lib. 1. in Ruffi. . Let the Creditor think that he may fall into the same calamity and extremity himself which the dettor suffereth: And (that I may use the words of the noble-witted Curtius,) Suam quisque fortunam in consilio habeat, cum de aliena deliberate. The Troyans' were once a flourishing people: Ferus omnia jupiter Argos transtulit h Virg. in Aenei. : Troy a goodly City: jam seges est, ubi Troia fuit i ovid. in epistol. . Hecuba in her youth a gallant Princess, in her age a captive, deploring her estate with Me videat et te Troia k 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 have seen servants on horses, and Princes walking as servants on the ground kk Ecclesiast. c. 10. vers. 7. . Codicgn. You have insisted a long time upon 3. That the rigorous Law of execution for bet was afterward abrogated by the Romans. a Law antiquated, and made a large comment upon 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 years are past sithence it was repealed and abrogated l Hotom. lib. illustr. quaest. . But now according to our Law 4. By the Civil Law execution for develieth upon the goods of the party, & how far forth the word (goods) extendeth. execution lieth upon the goods of the party which we term bona: but the signification thereof extendeth further than the name of goods at the common Law: for it signifieth res nostras quae sunt in dominio nostro, vel quasi: and it signifieth aswell inheritance as goods. Canonolog. In this we descent not from you. Nomomath. Let me know Anglonomoph. what manner of execution ye use for debt at the common Law. Anglonomoph. The execution is fourfold, 5. A fourfold execution for debt by the common Law. either of goods only by Fieri facias, or of the moiety of lands by Elegit: or upon all the lands by an Extendi facias, upon 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 6. The execution of goods by Fieri facias is opened. a Parson for money due to the king out of an Abbey, to which the Church of the Parson was charged in xx. 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 provenientibus de Rectoria de R. and the Sheriff by his bailie took two books in the Church, and sold them for the king's debt l 8. H. 5. 4. . And whereas A. did recover damages in a special assize before special justices, and brought an action of Debt for the damages: it was resolved that the defendant was dettor of record, and therefore aught 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 m 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 levatum per rationabile pretium et extentam.) The execution upon 8. Execution upon statute merchant is opened. 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 manner, sciz. that he had sent to the bailie of the franchise etc. 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 justices 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 showed 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 n 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, and he had it o 9 E. 3. 24. . Execution by Capias 8. Execution by Capias ad satisfaciendum is showed. 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 suit of an other, and put in Newgate, and he at whose suit he was condemned in the king's bench had a Capias ad satisfaciendum to the Sheriffs of L. which did send the body, and did certify that he was condemned at many men's suits in London, and now he that sued the Capias came into the Court and did acknowledge 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 justices which be now have 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 suit he is condemned of his execution: for if he be delivered, the other is without remedy, therefore a Scire facias was awarded p 8. H. 5. 7. . The like Law is in an execution upon 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 1. Division. 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. Yes truly, and that by an action 1. In what case a man is accountable at the Givill Law per actionem aestimatoriam. which we call Actionem aestimatoriam, because it is conceived upon the special and prescript words of the valuation of the thing a ff. de aestima. ac in rubro. et l. 1. et Insti. de actio. §. actionum. . Anglonomoph. So by our Law we have a 2. The difference of a special bailie, and general bailie at the common Law. special bailie, and a general bailie: A special bailie is he which is bailie after a special manner, 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 upon 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, than a writ of Account will lie:) But if he receive the very sum contained in the bond, than a writ of Account will lie against him, as receivor of his money. But if his bailie be also bailie of his manor, and this Obligation be delivered unto him as bailie of the manor, than an Account will lie against him as bailie of the manor habentem curam of this Obligation b 2. R. 2. Account 46. : for a bailie of a manor 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 manor, or of an house, if he be bailie of a manor, he hath 3. What things belong to the charge of the bailie of a manor. 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 c 2. R. 3. 14. per Br. . But this is the difference betwixt a bailie, and a receivor, according to the bringing of a writ of Account. A writ of Account will not lie 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 lie, to the end that by the writ of account the incertainty may be brought to certainty d 9 H. 5. 3. per Hyl. . But in your case proposed, the bailie is to be intended a special bailie. But this general and currant rule we have 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: As if my bailie sell a quarter of corn 4. That by the common Law if the bail be prejudicial to his Master, he is to make recompense. for forty pence, whereas he might have sold it for vj. s'. viii. pence, he must answer for this e 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 upon his account, though he did as much as he could according to his knowledge f 41. E. 3. 3. per Finch. . But if a bailie do a thing which toucheth his bailiwick, and which duty bindeth him to do, as if he pay rents or other duties which are due of the manor, he shall be satisfied for this: otherwise it is if he do any thing which toucheth not his bailiwike, for than he ought to have special warranty g 42. E. 3. 6. per Belkn. . Canonol. Our law dissenteth not from these assertions. Nomomath. Suppose I give money to Titius 2 Division. 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 h ff. acti. mandat. direct. l. si vero. §. fi. . but if yourself or some other to your use do 1 By the civil law the bailie is discharged if the master intermeddle. buy the land of Sempronius, now is Titius discharged unless he more expediently, and with less cost might have bought it of Sempronius i 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 2 That by the common law as well as by the civil he that is put in special trust to puocure the profit of an other is accountable. of another, and is not his apprentice: for if the king grant to a village certain tolle of things which shall be fold 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 have 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 k Fitzher. N. B. 119. f. 114. c. . And 8. E. 4. it was said by Nedham, that the Churchwardens of a certain parish might have a writ of account against their predecessors, but the parishioners could not l 8. E. 4. 6. per Nedh. : And so the master of an hospital may have a writ of account against him that was receyvor or bailie in the time of his predecessor m 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 parson, he being not named parson 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 utrum n 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 o 4. E. 3. Account. 97. : and 34. E. 3. in a writ of account against one as the bailie of his wood, the pr declared, how the def. was the bailie of his wood to cut it, and to sell it; and the declaration was allowed without saying that he did any way administer: for this must come in by way of answer, and so the writ may be against the bailie of a manor 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 p 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 manor q 9 E. 3. Account. 95. . And if one ought to be bailie by reason of his tenure though he do not occupy the office, yet he shall be charged in a writ of account r 18. H. 8. 2. . And if a receivor or bailie do make a deputy, yet the writ of account ought to be brought against the bailie himself, or against the receivor himself, & not against their deputies: for the deputies resceive the money, and administer the goods to the use of the master s Fitzh. N. B. 119. B. . but a writ of account will lie for the receivor against his deputy, as for the viscount against his deputy t 11. R. 2. Account. 48. . And a man may have a writ of account against a woman as receptrix denariorum u 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 receivor to a man, and after she taketh a husband, a writ of account lieth against them both (as econuerso it lieth for them both x 28. H. 6. 7. :) de tempore quo etc. dum ipsa solafuit: but whereas a man & a woman be receivors, & they after entermarie: in the writ they shallbe both named receptores a 4. E. 4. 26. 19 H. 6. 5. : but a writ of account will not lie against an infant as bailie or receivor to any man, because the law will not intend that any man will put confidence or trust in him who wanteth discretion, & experience. b 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 have said. Nomomath. If the master of the bailie happen to die, whether may his executors charge 3. Division. the bailie with an account. Codicgnost. By our law they may c ff. acti. mandat direc. l. si vero §. f. 1 . Anglonomoph. That likewise is warranted by 1 Account ought to be made to executors by the civil law. our law: for if any have cause to have an actiof account against his bailie or receivor, if he die, his executors may have this action, yet the common law at the first was otherwise d 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 jointenants & a writ of account was maintained by the executors of him that survived e 38. E. 3. 8. : to which accordeth 19 E. 3. and that the heir shall not have a writ of account against him 2 The same is warranted by the common law. that was receivor to his father f 19 E. 3. Account. 56. : And 3. Eliz. the administrator brought a writ of account g 3. Elizab. 202. Dy. . 3 That a writ of account by the common law will not lie against executors unless it be in some special cases. But a writ of account will not lie against the executors or administrators of a bailie or receivor for the receipt and occupation of their testator h Fitzh. N. B. 117. C. : unless it be in the king's case i Littlet. tit. socage. . But if the executors do once enter into an account, a writ of account will lie against them in the case of a common person k 12. E. 4. 10. . Or if the bailie or receivor be found to be in arrerrages of account, and die, an action of debt lieth against his executors upon an insimul computaverunt l 2. H. 4. 13. . And it appeareth by that book that in the writ he must be named executor: and a bailie may have a writ of debt against the executors of his master for a surplusage of account m 13. H. 6. executor. 21. . Canonol. This I can not withstand by any reason in our law. Nomomath. I pray you let me know the force 4 Division. and substance of the authority which the master may give to the bailie. Codicgnost. It is no more but when a man 1 What authority may be assigned to a bailiff by the civil law. may do a thing by himself, he committeth it to another to be done of him n Gaxalu. verb. mandat. . And he that doth execute the authority ought not to exceed the limits of his authority o justi. manda. §. si is qui. . But this difference 2 The difference of an authority a charge, and command by the civil law. we put betwixt an authority, 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 p In his de verbo sig. . Praeceptum non praecipitat mors praecipientis: Mandatum mandatore cadente cadit. Canonol. But some hold opinion, that all these 3 The canon law is against the difference, so likewise is the common law. three: authority, command, & charge do expire by the death of him that commandeth, chargeth, or giveth authority q joan. 14. q. 1 quod praecipit. . Anglonomoph. In deed that is more agreeable to our law especially in this matter of bailieship, as may appear by diverse authorities in our law r 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 ●. Division. betwixt a bailie, a solicitor, an attorney, and deputy, that I may have more distinct knowledge of that which I endeavour to know. Codicgnost. A bailie is he to whom a special charge of procuring a man's profit, and the valuable 1 The difference betwixt a bailie, a solicitor, and attorney, and a deputy, is showed out of the civil law. increase of his wealth is committed s Gazalup. in ver. villici. : an Attorney which we term by the name of Procurator adiudicia is he which in place of judgement doth for an other man by his warrant complain or defend t ff. mandat. l. 1. §. 1. : and this may be 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 be of the age of xxv. years: but a solicitor may be, though he be but seventeen years old u c. fi. de procu. l. 6 . A deputy is he to whom a special authority is committed to deal in a certain business x c. de office eius 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 extra judicium 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 conveyed to the attorney or solicitor a l. si procurator meus ff. de neg. ge. . Canonol. We make no such difference in our 2 The difference holdeth not in the canon law. law: for every one which doth administer an other man's business, we call by the name of procurator b 1. q. 3. saluat. . Anglon. The common law doth in this more agree with that which Codicgn. hath said. I will 3 The common law according to the aforesaid difference doth more agree with the civil then with the canon law. 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 procheinamy 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 c 13. E. 3. Attorney. 76. 40. E. 3. 16. : And an infant was received to sue a writ of error by his warden d 27. Assi. pl. 53. Fitz. N. B. 27. H. . And an infant shall not remove her warden, nor disavow his next friend, which sueth an action for him e 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 f Fitzh. N. B. 27. M. 27. Assis. pl. 53. . But as to the making of an Attorney we have this rule in our law. Nemo potest facere Atturnatum nisi habeat proprietatem in re, & ideo custos non potest facere Atturnatum quia non habet proprietatem g 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 justitiarijs per breve nostrum inter I. S. petentem, & I. N. tenentem de placito terrae etc. but the warrant of the plaintiffs attorney must be thus ad convincendum 12. jur. de placito terrae etc. per viginti quatuor etc. h 2. E. 3. Garrant. dattour. 21. But the power & authority of the attorney is by the judgement determined and carried back to the master. Wherefore it was said 4. E. 3. that after judgement the attorney was not received to release the damages, nor to acknowledge satisfaction i 4. E. 3. Attorney. 18. 34 E. 3. 95. 34. H. 6 51. 1. E. 2. Garrant. 22. : contrary to the book of 33. H. 6. ᵏ But there is great difference betwixt a bailie, & a deputy: for though a bailie have 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 manor cannot lease the lands of his Lord but only 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 be reserved upon the lease to the Lord, not to the bailie l 2. E. 4. 4. : but 8. E. 4. is the better law in my opinion, where it is held, that the bailie of a manor cannot make any lease of the manor, nor of any parcel of it without special commandment of the Lord to do it m 8. E. 4. 13. . But if he cut down trees, or kill any beasts going upon the land of the manor, without lawful cause, an action of the case will lie against him n 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 o 19 E. 3. Feoff. 68 . But it is held by Catesby 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 p 8. E. 4. 1. et 9 Dutch. de Suffolk's c. per Catesb. . 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 q 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 heirs 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 r 11. Elizab. 285. Dy. . And 39 H. 6. it was agreed by all the justices, that if a man have 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 s 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 4. That by the civil Law, contrary to the common Law, there is no manner of interest in a deputy. hath no interest at all in the office, 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 Precedent 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 parts, aliae imperatoris, alter omnia agere ad praescriptum, alter libere ad summam rerum consulere debet t Caes. lib. 3. de bello civil. . The office of a Deputy or Lieutenant, and the office of a Governor, 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 u Caes. lib. 2. de bell. civi. : And that a deputy is but as a minister to the principal officer, may appear by Cicero's precept to his brother: Sit annulus tuus non ut vas aliquod, sed tanquam ipse tu, non minister alienae voluntatis, sed testis tuae a Cicer. ad Q. fratr. . Let not thy ring be as a vessel to be used at any man's pleasure, but as thyself, not as a servant to an other man's will, but as a witness of thine own. Nomomath. What if the Master do promise ●. Division. unto his Bailie or Attorney, that if he can procure him the possession of the land in question, he shall have the half, or some part of it for his reward: Will your Laws allow of such an assumpsit? Codicgn. Our Law doth not allow it: But 1. That the bailie or attorney may not take half the land for purchasing or compassing the other half. he may safely take a special collateral reward for that particular effect b Gazalup. in ver. procurat. . Canonolog. So in our Law, he that giveth part of the profits of a benefice to be admitted to the benefice, is so far from being allowed, 2. That the like matter is forbidden by the Canon Law. that his fault is accounted to be enorm, and indispensabile c 13. disti. nerui. : For it is held to be simony, & corrupt chevisance, if any valuable consideration be given in such regard pacto, vel facto. And he that buyeth so, is called Simoniacus of Simon Magus, and he that selleth so, is called Gieziticus of Giezi d 1. q. 1. Studet. . Anglonomoph. In our Law it is held, that 3. The common Law agreeth with them. there is no diversity, where a man selleth land depending a writ petitory of the same land, or do give it depending the writ: for in both cases there is Champerty e 8. E. 4. ●9. . Nomomath. I pray you let me know whether 7. Division. 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. The public 1. Two sorts of accountants by the civil Law. accounts are such as are to be made by a public officer, who is charged with some special administration appertaining to the common weal ee L. officialis c. de epis. et cler. . For the Precedents 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, ut apud duas civitates Laodicensem et Apamensem, quoniam ita necesse erat, rationes confectas et consolidatas deponeremus f 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 2. Likewise by the common Law. hold in matters of account g d. l. officialis ibid. . Anglonomoph. And by our Law there be 3. And also by the common Law. some which be accountable by Law: some by a particular charge imposed upon them, or undertaken of them. And in the former case a writ of Account will lie, 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 h 33. H. 6. 2. per Prisot et Wangf. . And the same Law seemeth it to be to Mast. Brooke i Brook Account 8. , where a man presumptuously and of his own head undertaketh to be my bailie, a writ of Account will lie in such case: But if he enter to his own use, there it seemeth (saith he) that a writ of Account will not lie: for there Ne unques son Receivor pur 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 knight's service, wherefore he seized the land in ward k 49. E. 3. 10. . By which case it appeareth that a writ of Account is admitted to lie 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 l 4. H. 7. 6. . But a writ of Account will not lie 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 m 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 Waste done in a man's Ground. NOmomath. The next matter that by order offereth itself to your conference, is to treat of Waste done in a man's 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 travel for my further instruction. First, of what things Wast may be committed. 2. What thing properly your laws censure, and determine to be waist. 3. What punishment by your laws is to be inflicted upon these that commit waist? You shall do me great pleasure in unfolding the secrecy of your knowledge hereof. And first to begin 1. Division. with the first, let me know of what things waist may be committed. Codicgnost. Wast may be committed in suffering 1. Of what things waist may be committed by the civil Law. the walls of houses, or closes to fall a 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 waist b C. de ●un. pa. et Salluen. li. 11. . But 2. Cutting of wood in silva caedua by the civil Law is ●o waste. to cut wood in silva caedua which is apt to be cut is no waist, and therefore it is said apt to be cut, because it groweth easily again. Neither doth waist seem to be committed in silva pascua, if brush-wood, small wood, or underwood be cut for the better pasturage of the beasts that go upon the soil. Likewise waist may be committed in cutting down trees which grow sparsim, here & there in the land which is demised to farm: for this is waist in the land itself, because Arborum non est seperatum corpus afundo. But this word Arbor extendeth by our Law very far, for it may be affirmed of Vines, which notwithstanding by reason of the tenderness of them may seem to obtain a middle nature betwixt a tree, 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 reeds, 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 adjudged to be Wast. Such trees are named of us Arbores caeduae: which may grow again either by the same stock, or by some other imps, which may be grafted upon them. Such are the Cherie tree, the ash, the medlar tree, the oak, the laurel, the alder tree, and the poplar tree c ff. Arbo. furtim. caesa. l. 1. et l. vitem. et in gl. ff. de arbo. ceden. l. 1. §. arbo. . But the cutting down of such trees may well be called waist, and is punishable by our Law. And to open the sluices of the river Nilus is sharply punished cc C. de Nili. agge. non rumpen. l. unica. . Canonolog. Our Law doth not in any of these things vary from yours. Anglonomoph. Of all these things, unless it be reeds, ivy, & the like things which do more approach to the nature of weeds, then of trees, we hold in our Law that waist may be committed. Nomomath. Well, than 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 showed promiscue, both of what things waist 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 be waste (for the other point will be thereby manifest,) as he hath before pronounced by their law. Waste may be committed in the decay or demolishment 3 The common law agreeth with the civil that waist may be in the decay of an house. of an house: this likewise is waste by our law; therefore in an action of waste, 42. E. 3. the declaration was that the tenant had done waist in certain tenements demised unto him by the predecessor of the plaintiff for term of life, and the waist was assigned to be 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 have said (nor at any time after) wherefore so he did d 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 e 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 only 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 ee 40. Assis. pl. 22. , (and therefore may not properly be said to be 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 f 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 be no waste g 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 shall be adjudged waste, and the plaintiff shall recover gg 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 adjudged waste h 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 shallbe said to be waste i 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 have an action of waist for the late ruin, which happened after the death of the ancestor k 2. Mari. Br. waist. 117. . Neither is it sufficient in bar of a writ of waste of a house that the defendant hath built a new house in am 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 l 22. H. 6. 18. . And the necessity of building a house ought to come in question, as if the lessee have great need of a stable: and if no house be built upon the land at the time of the lease, the lessee may not cut trees to make an house m 11. H. 4. 32. . But if waste be made by the kings enemies or by tempest, the tenant shall not therefore be punished by a writ of Waste n 43. E. 3. 6. . Yet in such case a special covenant will bind the tenant. And therefore it was adjudged 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 be recovered de bonis testatoris, and not conditionally, if there were none such, of their own goods: and yet this happened by casualty o 15. Eliz. 324. Dy. . But the reason thereof is given in an other place, Modus & conventio vincant legem p 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 have convenient time to repair them q 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 waste by our law. It is clear by our law, that the tenant may cut trees for the amendment of houses, 5 The tenant by the common law may cut trees for the reparation of houses. and the reparation of them, but if the houses be decayed by the default of the tenant, the cutting of trees to amend them is waste r 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 s Temps E. 1. waste 122. . And 7. H. 6. it is said, that he shall not meddle with great timberwoode without the assent of his lessor: otherwise it is of seasonable wood which is but of the age of ten years or thereabout t 7. H. 6. 38. . But the cutting of dead wood is not waste u Fitzh. N. B. 59 M. : And the termor hath house-wood, hedgewood, and firewoode belonging to his term of common right: and he may cut wood for that purpose x 21. H. 6. 50. . But if he cut wood to burn where there is dead wood sufficient this is waste a 20. E. 3. waste. 32. . And it is not waste to cut seasonable wood which hath used to be cut every twenty years, or within 6 The common law agreeth with the civil in the cutting of silva caedua. that time b 7. H. 6. 40. 11 H. 6. 1. . And the cutting of thorns is no waist because they are not fit for timber c 46. E. 3. 17. . Neither is the cutting of willows waste, unless they lie about the site of the manor d 40. E. 3. 15. 10. H. 7. 2. 12. H. 8. 1. 12. E. 4. 1. . And the termor may cut underwoode growing under the great trees, and the high wood, but if there be no high wood, or great trees there, he can not cut at all e 40. E. 3. 25. 10. H. 7. 2. . And whereas Codicgnost. hath said, that the lopping & pruning of some 7 The common law agreeth with the civil in tolerating the lopping of trees, which may be available for their growth. trees may be more available for their growth, & therefore the cutting of them is not waste, because they may grow by the same stock or by some other imps grafted upon it: In very truth our law runneth with this stream. For as I have showed before, to cut seasonable wood is no waste: but if certain sprowtes or branches do grow upon the stock, the cutting of these sprowtes or branches or the destroying of them is waste f 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 be cut down, this is waste g 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 showed 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 1 That both by the civil law and common law where land is empeired by the inundation of water this is waist. 3 Division. present profit, this in our law is accounted waste h 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 hid, or this shall be accounted waist, if he do it without the permission of the lessor. Anglonomoph. He that cometh to land or to any other thing by an other man's grant or 1 That by the common law he that cometh to land by an other man's grant ought to use it according to the grant. demise can not use the land or that which is granted, further than 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 and the fish in the pond to a stranger, the grantee may not dig the land etc. to make a trench, because he may take the fish with nets or other engines i 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 manor of Dale, and that I may put a conduit-pipe in the land to convey the water to my manor, if after the pipe be stopped, I may dig in the land to amend the pipe k 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 l 20 H. 6. 1. 16. H. 7. waist. 131. Fitzh. N. B. 59 N. . So if the termor do alter wood into arable, this is waist, or arable into meadow, this is waist. For this is prejudicial to the inheritance: for the evidence concerning the land serveth to prove an other thing m 29. H. 8. 35. Dy. Maleverers. C. . And so it is if land be overflowed for default of repairing banks n 20. H. 6. 1. : but of this I have 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, or for 2 The digging for clay or coal in the land demised is waste by the common law. stone, or for coals shall be said to be waste o 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 p 22. H. 6. 18. : & according to M. Fortescues report 20. H. 6. if the particular tenant have 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 waist, and the words of the writ were: Quòd permisit aquam terram illam inundare, 3 The suffering of the ground to become rushy or weedy, by the common law is waste. ita quòd devenit iuncosa q 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 tree in the place where the waste was assigned, and did make a ditch in that place to water cattle, which went upon 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 adjudged a good answer r 33. E. 3. Double plea. 9 . Codicg. That which you have said is to reason consonant, to our law correspondent: for as to your first case of the clearing or amending of the conduit-pipes etc. Though it be in another man's ground, this in our law is not accounted injurious s l. 1. c. de quae duke. l. 11. & l. de cernimus eo. ti. li. 2. . But we have a rule in our 4 That the civil law agreeth▪ with the common law▪ in suffering and to amend conduit-pipes in another man's ground. law: that if a man ought to convey water per subterraneos meatus, through certain chinks or cravies of the earth in an other man's ground, he must not do this by a levill of stones, but with pipes of lead, because the other man's ground is by stones more annoyed and impaired t 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, than an injury u c. de fund. patr. l. si. li. 11. . So it is, if a would become arable x c. quod per noval. de verb. signif. : but to destroy any thing in an other man's 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 nowm opus facere, sed vetus reficere a ff. de nova. l. 1. §. nowm. et §. si quis aedificium. . Canonol. Our law doth not withstand any of these assertions. Nomomath. Well, now I pray you proceed 3. Division. to speak of the penalty which he is to suffer by your laws that committeth waste. Codicgn. By our Law he that in such case 1. The punishment of waist by the Civil Law. will deny the wrong done shall be punished with double damages: But if he justify, and it be found against him, with single b ff. de insti. 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 C. de agge. Ni non rump. l. v●. ●●. . Canonol. Our Law in this doth not gainsay you. Anglonomoph. By an action of Waste at our 2. The punishment of waist by the common Law. Law, the plaintiff if it be found for him, shall recover triple damages d 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 e 17. E. 3. 5. 18. E. 3. 38. 31. E. 3. execute. 66. : and he shall recover likewise the place wasted f Stat▪ Glouc. cap. 6. . Nomomath. I will put you to no more pains in this matter, but will descend to other things which have 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 1. Division. 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, a learned man 1. Two sorts of Parceners: Parceners by the common Law, and Parceners by custom. 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 simple, or fee tail, have 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. And they are called Parceners, 2. Who be Parceners by the common Law. because by the writ, which is called the Particione facienda, the Law will compel them to make partition of the land. Also if a man seized of tenements in fee simple, 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 Aunts a Littlet. lib. 3. c. 1. fol. 54. . And none be called Parceners in our Law, but women, or the heirs of women which come to lands and tenements by descent. For if two sisters purchase lands or tenements, thereof they be called jointenants, and not Parceners b Littlet ibidem fol. 56. . But brethren may be Parceners by the custom, as by the custom of Gavelkind in Kent bb Littlet. ibid. 59 . Codicgn. We have an action in our Law 3. Who be Parceners by the Custom. very like to your above mentioned writ of Particione facienda, and it is called actio familiae herciscundae, and it lieth for them which have a common inheritance to be divided betwixt them: As when two sisters, brothers, or kinsfolks are instituted heirs, and by that mean are reputed as several heirs to the ancestor, or him that suiteth them c 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, his 4. That by the Civil Law where three heirs are instituted, they are not reputed as one heir. meaning by our Law is taken to be this, that every one of them should be heir in part, non in solidum, for maeteria subiecta the thing itself doth require it, because it is unpossible by our Law, that every one of them should have the inheritance in solidum d L. hoc artic. ff. in fi. ff. de hear. insti. . But if he do not speak distributive, but collective: as if he said, Quisquis mihi haeres erit, det Titio centum solidos: now whether there be one heir or more heirs than one, yet Titius shall have but five pounds, because of the collective word quisquis e 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 have 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 f L. qui filium §. 1. ff. de leg. 1. . And if the Testator say, Quilibet haeredum meorum, det Titio decem solidos, Titius shall have as many ten shillings as their be heirs g L. si pluribus. et ibi no. gl. ff. de leg. 2. : which proveth that by our Law, the several heirs are not accounted as one heir. Canonolog. Our Law holdeth not the contrary. Nomomath. You have 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. Yea to all intentes in regard 5. That by the common Law parceners are reputed as one heir, as to the descent of lands. of the descent, though as to the making of partition it accounteth them as several persons gg Fitzh. nat. bre. 197. A. . For a Nuper obis● ought to be brought by that Coparcener, who is deforced from the 6. Parceners in regard of the partition are accounted as several persons. tenements against all the other Coparceners, which do deforce her, although some of them have nothing in the tenancy h 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 i 7. E. 3. 16. 9 E. 3. Nuper obijt 8. 8. H. 6. 8. . Nomomath. Whether shall a writ de Particione 2. Division. facienda be used against jointenants or tenants in common, as well as against Parceners, or some other remedy, shall be used against them. Anglonomoph. Before the Statute of 31. H. 1. The statute of 31. H. 8. giveth a writ de Particione facienda as well to jointenants and tenants in common, as to parceners. 8. jointenants 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 k 31. H. 8. c. 1. Rastall Partition 3. . But by the common Law jointenants may make partition by mutual assent without deed l 47. E. 3. 22. 19 Ass pla. 1. . And by such partition the jointure is severed m 30. Ass. pla. 8. . 2. The three several actions against Parceners, jointenants, and tenants in common at the Civil Law. Codicgn. By our Law several remedies are used against these which be both of one blood or one family, which you have termed Parceners: as an action de familia herciscunda: and an other manner of action against such as come to the land by joint title, though not by one descent, which you have termed jointenants, 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 dividundo. Canonolog. To this our Law is not contradictory. Nomomath. Let me now understand in 3. Division. what sort partition of lands or tenements and other things is made by your Laws. Anglonomoph. Of lands and tenements the 1. divers kinds of partion at the common Law. partition by our Law is to have a several part or portion, as to have a third part, if there be 1. A partition to have a third part, or a fourth part. three Coparceners, or a fourth part, if there be four etc. And if there be two Coparceners, and one of them releaseth to the other 2. A partition by way of release. with warranty: this hath been held to be a good partition in Law n 44. E. 3. Counterplee de vouch. 22. 34. E. 1. Partition 17. . And partition of lands is sometime made by the grant of 3. Partition by the grant of a thing de novo. 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 o 2 H. 6. 14. . So when land entailed is divided betwixt Parceners, and a rent is reserved upon 4. Partition by way of reservation. 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 p 2. H. 7 5. 15 H. 7. 14. . But a partition of a Mill is by taking the third part, or the fourth part of 5. Partition by taking the 3. part, or the 4. part of the profits. the profits, as the case requireth q 11. E. 3. Brief 478 . And 45. Ed. 3. it was ruled, that Milles, Dovecots, and the like, could not be actually, locally, and as I may say artuatim, as it were by joints divided. But if a woman ought to be endowed of the third part of such things, the third part of the profits ought to be assigned unto her r 45. E. 3. Dower 50. . Yet 47. Edw. 3. the case was, that two jointenants 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 be good against them, and their heirs s 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 have the reversion of three acres, and the other the reversion of other three acres, and it may be without deed t Fitzh. nat. bre. 62. D. 28. H. 6. 2. . And so partition may be made of a way u 21. E. 3. 2. . And also of a seigniourie uu 27. E. 3. 29. . But of an advowson the partition is to present by turn x 38. H. 6. 9 42. Eliz. 87. Corbets case per just. Walmesley Co. . Canonolog. Our Law agreeth fully with 6 A difference in the Civil law where a thing that hath parts coh●rentes is divided, and where it hath parts distantes. yours in this, for either a thing hath parts cohaerentes, as a house, and this may be divided by a several occupation: Or else it hath parts distantes, as a load of wood, or a flock of sheep, and this may be membratim or corporally severed and divided y Ber. de excess. prae lab. lib. 6. . Codicgn. The very same difference doth our Law retain z L. none 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 have heretofore been handled by ye since 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 1. Division. (Simo) always import and signify, a condition in matter of contract and limitation of estate. Codicgnost. It doth not always signify a condition, 1. Si doth not always signify a condition in the civil law. but sometime it signifieth an uncertain cause, as I promise to Titius ten pound, if he do accomplish my business. Sometime it signifieth 2 Sometime it signifieth an uncertain cause 3 Sometime it signifieth a certain cause. 4 Sometime an uncertain event. a certain cause, as if the judge do give judgement 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 5 Sometime a condition. a conditional disposition, which always suspendeth the premises or matter precedent a 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 bondservant, & if I do not deliver him unto you within such a day, than I will give unto you twenty pound nomine paenae, here is both a condition, & likewise conventio paenalis, which is presently to take effect upon the breach of the condition b l. Stipulatus. §. 1. ff. de verb. obli. . So if the testator say, if my bondwoman shall bring forth three children at three labours, let them be free: now if the woman bring forth four children at two labours, they shall all be free: for though there be four children, yet there is but a double labour, and in the eye of law bringing forth but two children: for all that be 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 borne at a birth, and not two or more c l. Aretusa. ff. de stat. homi. l. cum matter. § fi. ff. de fidei commis. . And in this case, benigna interpretatio facienda est in favorem libertatis. And because it can not be 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 be one child, two procreations one birth, unless it be because the parents were one person in law, when they begot them. And surely Quintilian maketh two distinct procreations in your case, & therefore he saith. Quid refert an ex eisdem prima illa duorum corporum animorumque compago seminibus oriatur? sibi quisque firmatur, sibi quisque componitur, & duo pluresue fratres nascuntur fato singulorum d Quintil. in Gemin. languent. : And Esau and jacob famous twins were borne so continuatly (as I may say) together, that the later did hold the fate of the former e Genes. 25. . Yet God forbidden that we should account these two one. Saint Augustine boldly and wittily distinguisheth them thus: unus duxit mercenariam servitutem, alius non seruirit: unus a matre diligebatur, alius non diligebatur: unus honorem, qui magnus apud eos habebatur, amisit, aliter ademptus est. Quid de uxoribus, quid de filiijs, quid de rebus, quanta diversitas f 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 art: not contrary to nature, because as there is one conception of two twins, so there is one puerpercie, though it be finished at divers times, for the labour still continueth, not contrary to art: for the Astronomers hold, that twins are always borne 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 be materially taken, it is that part of the Zodiac which ascendeth upon our hemisphere: for the Zodiac circle 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 heavens, some in another, and children being borne 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 have rather answered me, then satisfied me: for I am persuaded, that I shall never be of your opinion whilst I live, neither will I applaud to your law 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 midwifery in handling matters of law, but will turn sail from it: as Cato disliked to prattle with women in the Senate house g Livi. li. 34. . But as to the assertions of law, which he hath set down, they shall not glance from me without touch. Whereas he hath said that this word (si) doth signify an uncertain cause in 6. Si doth signify an uncertain cause at the common law. their law, so it doth likewise in ours, 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, upon an obligation endorsed with this condition, that if it fortune joane 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 etc. and the defendant said, that after the making of the said writing & before the said feast the aforesaid joane at B. in the county of L. died 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 be 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 etc. 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. died, 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 died, 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 be referred to a time certain: for every tunc relateth to his quando, but they thought that it should be 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 divers cases relation shall not be made ad proximum antecedens: 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 be referred to the estate tail, which doth next preceded, because it wanteth the word (heirs) to make an estate tail, and therefore it shall be referred to the first estate. Which later opinion if it be law, then by our law (si) may signify and may make other words to signify an uncertain cause of the accomplishment of a condition h 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 judgement 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 upon 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 manner of suits etc. betwixt him & one B. that then the obligation should be void etc. And this was admitted to be good, and thereupon it may be concluded that (si) sometimes in our law importeth a cause certain, as the Duchess in this case was a certain cause of the arbitrement i 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 days 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 be intended that it may be made at any time after the date of the obligation until two days immediately following be past. And as in 8. Si, by the common law may signify an uncertain event. the civil law, so likewise by our law (si) whether it be expressed or implied 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 Paul's the next day in the morning, this remainder is good, though it be upon a (si implied) if 1 S. die not before the next day, and if one come to Paul's the next day in the morning, and if he which cometh thither be a person able to take by the grant k Assis. pl. 47. Perk. 13. sect. 56. . And whereas he saith, that by their law it signifieth 9 Si. signifieth a condition by the common law. a condition, or a conditional disposition, so it doth likewise in our law, as it is well recited in my Lord Dyers reports out of Bracton: Scito quòd, ut modus est, si conditio, quia causa. And as l 4. Mari. 139. Dy. to his conceited case of the puerperie, I take his reason to be very good, that benig na interpretatio facienda est in favorem libertatis. Codicgnost. What say you now sir? Nomomathes. I say that as for such a paradoxical fantasy, Non persuadebis etiamsi persuaseris. 2 Division. But I pray you resolve me this: If I sell 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 uneffectual. Codicgn. I take it clearly to make a good condition, for though the sale be pure and unconditionall, 1 The word (nisi, or unless) doth sometime signify a condition at the civil law. yet it is resoluble and defeasible upon a condition contingent m 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 n l. quib. diebus. §. fi. ff. de condi. & de mon. : or if he said, I devise unto him a hundred li. pro eura 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 implied, but only a limitation or modification to what intent or purpose the devise is o l. mill. C. de epi. et cle. . So if the testator say, I devise to Titius C. li. 2 Law is a modification or limitation of a grant is made. which I will shall be paid unto him out of my money which I have in such a place, as namely in such a closet, or such a chest: if in the closet or chest there be no money, than there is nothing due, but if there be a less sum, yet all the money is due by reason of the intent p 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 q l. Paulo Callimacho. §. fi. de leg. : because the adjection and mentioning of the place was only used for a certain demonstration of the land which should be 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. r l. legatum ff. de annu. lega. , because the word (until) doth signify in this case a limitation. And though there ought to be a multiplcation 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 marry, this signifieth not a yearly legacy, because subject a materia non patitur ut sit multiplicabile: But it only 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 reverteth to the heir s 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 have put good and perspicuous diversities betwixt a condition and a limitation. I pray you Anglonomoph. show what your Law determineth of this difference. Anglonomoph. The very same difference is 3. A difference betwixt a limitation and condition at the common Law. 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 lessour, during the life of the lessour: and if the said rend be behind, that then it shall be lawful for the lessour to distrain for it in the lessees manor of S. the lessour hath a franktenement in the rent sub modo, depending upon the will of the lessee (and the lessour,) and there is a limitation implied by Law, though not verbally expressed t 3. E. 3. 15. Assize 172. . So if a man make a Lease to one for life, paying the first six years 3. quarters of corn, and if he will hold it longer a C. s. the word (If) in this case maketh but a limitation u 15. E. 3. Execution 63. . So if a rent of 5. pound be granted to I. as long as the grantor, his heirs or assigns shall hold the manor of W. this was adjudged to be a freehold in the grantee, but yet with a limitation uu 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 estover of Wood, when he cometh to his manor of D. the grantee hath a freehold, but qualified with certain limitations a 17. Ass. pla. 7. . So it is if the king grant an office to I. S. donec bene & fideliter se gesserit b 3. Ass. pla. 9 et 6. . So if land be leased to one quamdiu se bene gesserit c 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 mortgaging, encumbering, entangling, or aliening the land, shall be clearly discharged, excluded, and dismissed touching the entail, and the conveyance of the entail shall 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 Devisour d 13. et 14. Eliz. Come Newyses c. 403. . And whereas you have 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, there is no money due, our Law dealeth 4. The common Law is more ample and large than the Civil law in matter of limitation. 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 have neither coffers, nor money in them, yet his person shall be charged with the annuity e Fitzh. Nat. bre. 152. A. 9 H. 6. 17. , because the grant itself induceth a charge upon 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 f 14. E. 4. 4. . So if I grant an annuity of x. li. out of my land in Dale, and I have no land in Dale, this grant is not void, but my person shall be charged g 9 H. 6. 53. per Newt. et Cot. . Nomom. Pause here Anglonom. What is Canonologus drowsy, or entered 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 have taken any advantage of the speeches of my two companions, I would not have 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 3. Division. Codicgn. A man deviseth to R. x. li. and if he wast or spend it, than 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 una vice h 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 Croesus, 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 judges were opposed against other two in the like case. There is a Proviso in a Lease, that 2. How far forth a word of restraint is to be extended at the common Law. neither the lessee nor his assigns, shall not alien to any without the assent of the lessour, but only to the wife, or the children of the lessor, and the lessee alieneth to one of the sons of the lessour: It was left ambiguous, whether the restraint were now determined i Mar. 152. Dy. . Nomomath. Let this be the case. I am bound to pay you twenty pound, if your ship come 4. Division. 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 upon 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. By our Law it is of force to overthrow 1. An agreement by word may defeat a condition in writing at the civil Law. 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 k ff. de nous. et C. eo. ti. . Anglonomoph. Our Law holdeth the contrary, 2. The common Law is quite contrary to the aforesaid assertion of the Civil Law. and the reason is this, because it is an inconvenience in reason, that an especialty sealed and solempnlie delivered, should be avoided by the bare agreement of the parties, which is but a mere matter in facto l 1. H. 7. 14. Dones case per Davers. . Yet in some cases it is not inconvenient, that an obligation should be avoided by a matter in fasto 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 villeine is regardant, the marriage & the purchase may be 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 m 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 lose x. li. paiable at the same day: an action of Debt was brought for the x. pound, and it was allowed n 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 upon 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 o 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 showed forth did grant, that if the defendant did make a reconusance upon 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 p 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, our Law maketh 1. Three sorts of impossibilities at the Civil Law. threefold: 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: As if a man should contract with a 2. What impossibilitas iuru is at the Civil Law. woman si prolem evitaverit, 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 q 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. Impossibilitas facti, is when 3. What impossibilitas facti is at the Civil Law. there is great difficulty in the thing that is to be done, and it is not possible to be 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 villeine 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 r L. cum hear. §. 1. ff. de sta. li. . So it is if a man being at York be bound to pay to an other at London x. pound before sunset, this though it be not impossible in itself, because a Pegasus or post-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 s Insti. de verb. obli. §. loca. . Impossible by nature that is said to be, which is 4. Impossibilitas naturae by the Civil Law. 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 t joan. ad reg. Nemo. li. be reg. iur. . Nomomath. These differences have been well opened by Codicgnostes. Now I will request you Anglonomoph. to explain and illustrate them by cases. Anglonomoph. I will particularly speak of 5. Which be conditions against Law by the censure of the common Law. them all: And first of Conditions against Law. If estates in land be made 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 upon 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 Queen's subjects, it shall be lawful for him to re-enter, the estate is good, and the condition void u 4. H. 7. 4. 2. H. 4. 9 . So it is if one enfeoff an other upon condition, that if the feoffor do burn the houses of I. S. it shall be lawful for him to re-enter uu Perk. Condic. 139. : for such conditions are impossible to be good by Law. But if a lease for life be made, or a lease for years of land upon condition, that if the lessee kill I. S. within such a day that then he shall have 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 have 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 void a 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 void, but the obligation is not void, because such things are not expressly rehearsed within the condition, so that the condition is not directly contrary to law b 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 upon condition, that they shall make no waste: or upon condition that the wife of the feoffee etc. shall not be endowed, or if a lease for life be made upon 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 shall not charge the person of the grauntor, the grant is good the condition is void c 21. H. 30. 20. E. 4. 8. . But if a man seized of land in fee lease the said land for years by indenture rendering rend, proviso that the lessor shall not distrain for the rent, this is a good proviso because the lessor may have an action of debt d 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 e 46. E. 3. 4. G. guarantee 18. . And 7. H. 6. it was held by all the justices 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 heirs, 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 void: for that had cut off all the force of the warranty f 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 un des grauntors, this proviso was taken to be void, because it restraineth all the effect of the grant in regard of him, and if land be given in tail the remainder in fee, upon condition that if the donee, or his heirs do alien in fee, that the donor or his heirs 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 commit felony, or that he shall alien within age, or in mortmayne: and a man may enfeoff A. and his wife upon 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 g 10. H. 7. 8. . So if a man make two executors, proviso that the one of them shall not administer, this is a void proviso, because it restraineth all the authority given in the premises as to him, and the intent which agreeth not with law is to no purpose h 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 que use do such an act, his estate shall cease during his natural life, that this proviso is repugnant, and against law, for the estate can not be determined in part. And justice Walmsley said, that when an estate is given to one, it may be defeated wholly by condition or limitation, but it cannot be determined in part to one, and given in part to another: for that is repugnant to the rules of law, as if a man make a lease for life upon condition that if the lessee pay not twenty pound, that another shall have part of the land, this future limitation 6 What conditions impossible in fact are at the common law. is void i 41. Eliza. Corbets case 86. b. Com. . 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 be enlarged by such a condition impossible: and if an obligation be 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 upon condition that if the feoffor go on foot from London to Stamford in a day, that then it shall be lawful for him and his heirs to re-enter, the condition is void, quia impossibile, the estate good e 14. H. 8. 32. : but if A. be 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 died before the day of the return the obligation had been saved, because the condition became impossible by the act of God f 9 E. 4. 25. 15. H. 7. 2. 38. H. 6. 19 . Nomomath Now I pray you show unto me 6. Division. whether conditions are to be 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 man's speech or actions, shall have the regiment of conditions. Codicgn. Conditions are in our law taken 1. Conditions in the civil law are taken according to equity. according to equity. For if I grant to one an annuity of ten pound yearly, quamdiu res meas gesserit, the law maketh this sense of these words that he shall have ten pound yearly, si res meas gesserit together with a limitation g l. pater §. fi. ff. de condi. & daemon. . So if I buy of one the fishes which are taken by him, though he have not already taken any fishes, yet the words do imply a condition, that that the buyer shall have them if any be 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 etc. h 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 i 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 shall be my wife donec terra ponatur super oculos meos, these words are not generally to be understood, for so the party may lay earth upon his eyes, and slip the collar and break promise: but they must be understood according to common intendment, that she shall be his wife until his carcase be covered with earth, that is, until he be buried, so it is, if he should have said, Donec oculi, & os mihi claudantur k c. ex literis. 1. de spon. . Angl. Our law many times taketh the words 2 The common law taketh conditions many times strictly. of a condition strictly to preserve an estate. A lease was made to one upon condition, that the lessee shall 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 l 31. H. 8. 45. Dy. . And 28. H. 8. the case was thus: A lease for years 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 died, 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 than a tenant by the courtesy is, or the land of a villain. But Browne 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 m 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 judgement, wherefore the obligee brought an action of det upon 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 only 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 justice 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 be in present execution. And if the disseisee make a release to the disseisor, and a stranger cancelleth the deed of release, the disseisor may have an action of trespass against him: and yet the disseisor doth continue possession, and is not as yet actually damnified. And justices 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 only under the value, because of the judgement executory n 33. Eliz. Ridgeleys c. . But we have a rule in our law, that when a condition is to be performed to a stranger it is to be performed most strictly: and if the condition be performed at an other place, this is not sufficient o 36. H. 6. 8. . And 21. H. 6. it is said that if a man be bound, that he or his feoffees of the manor of W. shall grant to the obligee 20. s. rend for term of life, and he hath three feoffees, two of the feoffees cannot grant this rent p 21. H. 6. 19 But 7. E. 4. it was affirmed in the king's bench, that if a man were bound to make one a sure sufficient and lawful estate in certain land by the advise of I. S. if he make an estate according to the advise 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 q 7. E. 4. 13. . Nomomath. I would gladly be satisfied in this, when a man maketh one his heir or executor, 7 Division. and if he refuse to perform any thing that is comprised in his will, than he willeth that I. S. shall be his heir or executor, and shall perform his will, and shall seize his goods and enter into his lands post haereditatem aditam, though the heir or executor have intermeddled with the will, and have performed some things according to the intent of it: Now if the testator die, and the heir or executor have 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 upon 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. I. S. or the substitute of the testator 1. There may be a substitution of one heir after an other, or of one executor after an other at the Civil Law. 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, frustrated, and defeated r Insti. de vulga. substi. §. quo casu. : 2 The heir at the civil Law must succedere in universum ius defuncti. for the authority or interest of the heir or executor by our Law may not be apporcioned, but he must succedere in universum ius defuncti s 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 heirs, and I substitute the one of them to the other, that is, if the one die, the other shall have all, and the mother nothing at all t Gazalup. verb. substitutio brem loqua. . Anglonomoph. I have noted in your words Codign. two things, which have 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 shall entirely claim the possession. Which two assertions I shall severally prove by cases of Law beginning with the first: A man seized in fee of lands devisable, 3. By Will according to the common Law an entry may be limited to a stranger. 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 Commonalty of a certain village, to find a chappleine perpetual for the same tenements, and he died, and the devisee entered, and held the lands six years and was no chappleine, and the heir of the devisor 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 u 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 uu 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, upon condition, that if the son should disturb the tenant for life, that the land should remain to the daughter, and the heirs of her body, the father dieth, the son disturbeth the tenant for life, who dieth, the daughter brought a Formedon, and it was allowed a 34. E. 3. Formedon pla. vlt. : But yet the advantage of 4. The advantage of entry limited to a stranger is in the late reports doubted of. entry by virtue of the limitation is not in other late reports so clear, but hath been greatly doubted of: Stubes being Cestuy que 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 dieth, the question was who should enter for the condition broken, the heir, the feoffees, or he in the remainder b 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 have the land to him and to his heirs 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 heir of A. may enter into the land, and pay the money c 3. Mar. 128. Dy. . In like manner land in Gavelkind was devised to the eldest son upon condition, that he should pay 100 li. to the wife of the devisor, he failed of the payment, it was questioned by Manwood, whether the younger son might enter into the moiety, as by an implied limitation d 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 e 21. H. 7. 12. per Frowike. . Now that the 5. That the entry for the condition broken, defeateth the whole estate. whole estate of the feoffee or donee is defeated by the breach of the condition, and the 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 justices agreed: And so was judgement given in Winter's 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 f 14. Elizab. 308. Dy. . And 33. of Henry the eight, according to Mast. Brookes report, it was held for Law, that if a man give land in tail, or lease it for life, rendering rend, with a condition for default of payment to re-enter: now if he lease part of the land to the donor, or lessour, or if the donor or lessour 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 years, upon condition that the lessee should not alien the land to any person without the assent of the lessour, nor any part of the land, the lessour giveth licence to alien part, and the lessee alieneth the residue without licence, it was adjudged that the lessour may enter notwithstanding the dispensation of the condition ex part g 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 h 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-mill, he took twenty one fishes, and gave ten to the obligee, and an action of Debt was brought upon the obligation, and the plaintiff recovered, because he did not give unto him the moiety of the other fish. This was adjudged in the kings Bench. But now suppose that the condition doth extend only to some particular estates, whether shall the other estates depending be 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 she 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 i 3. Mar. 125. Dy. . And if a gift of land be made in tail, the remainder to the right heirs of the donee, upon condition that if he alien in fee, than the donor may enter, if the donor enter for the condition broken, the estate tail is only defeated k 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 re-entry for non payment by the tenant for life, and to retain the land during his life: If he enter for the condition broken, he shall have the land only during the life of the tenant for life l 29. Ass. pla. 17. . Nomomath. I give ye great thanks for the unwearied continuance of your pains, and though I be in questioning at a nonplus: yet I see your invention and memory are not graveled nor dried up, parched as it were with summer's drought. I pray you therefore let us still converse together under one roof (within my walls there is no Sinon, no Daws, no Momus, but chaste 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 Lawfavouring 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 inquired of. 2. The council of Constance is said to have condemned Wicklife for holding tithes to be 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 paid. 6. The Romans careful in paying first fruits. 3. Division. 1 Whether Parsons ought to have no more living than tithes. 2. It is denied by the Canonist that they ought to have no more living. 4. Division. 1 A lay man by the Canon-law may prescribe in paying a special portion in am of tithes. 2. The civil law agreeth thereunto. 3. By the common law a man may prescribe in paying a temporal recompense in am of tithe. 5. Division. 1 Two sorts of tithes are set down by the Canonist: some feudal, some ecclesiastical. 2. The Church only holdeth conusance of the right of tithes by the Cannon law. 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 suit of tithes is betwixt clergy men though it be merely possessory, 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 be but a fable. 5. One of the ancient statutes of England is compared with the aforesaid 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 parson may sue a spoliation against the other in the spiritual court. 8. The executors may be sued in the spiritual court. 9 Of what trees tithes may be demanded by the statute of 45. E. 3. 10. That the rend paid for tithes upon a lease for years 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 cite 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 posteth 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 be termed Churchland by the civil law. 2. Of Churchyards the spiritual Court shall hold jurisdiction by the common law. 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 divers significations of the word ecclesia at the common law. 3. The interest of the Parson, patron, and Ordinary, in the Church is showed. 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 tenure. 13. Division. 1 Punishment pro laesione fidei concerning a temporal act, is not to be adjudged in the ecclesiastical Court. 2. Perjury in an ecclesiastical court punishable in an ecclesiastical 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 law. 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 upon the Case. 1. Division. 1. THe reason is showed wherefore actio iniuriarum hath so general a name at the Civil law. 2. The barrister compareth an action upon the case at the common law to D. Stephen's his water. 2. Division. 1 An action upon the case lieth against the keeper of a common Inn if goods be embeasiled. 2. If a stranger lodge with me by my consent, and do embeasil goods, the Innkeeper shall not be charged. 3. If my servant embeasill my goods, the Innkeeper shall not be charged. 4. By the civil law the Innkeeper is to be charged with action if his servants 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 be paid 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 borne in seafaring, nothing is to be paid 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 upon the case, if there be an assumpsit either implicative or expressed. 2. That by the civil law want of skill only 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 upon 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 sarcasmical speeches against wicked men. 4. Aristophanes is condemned for his bitter detractions. 5. The devisors & publishers of libels punishable by the civil law. 6. The cannon law is severe against such. 7. Reproachful speeches punishable at the common law by an action upon 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 deed 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 law 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 be bound by deed indented by the common law. 12. A statute-bond is resembled to an instrument of warranty at the civil law. 13. A deed 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 redelivery of a bond an acquittance. 2. Division. 1 That by the civil law the executor succeed in universum 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 upon the will of the testator by the Common law. 5. According to the common law a devise is of no force until the death of the devisor. 6. The common law agreeth with the civil in the insinuation of wills. 7. That an action of debt will lie 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 be said to be assets in the hands of the executors. 3. Division. 1 The rigorous law of the Romans in their execution for det. 2. The execution of the Romans' greatly to be 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 upon the goods of the party, and how far forth the word (goods) extendeth. 5. A fowerfold 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 upon statute merchant is opened. 9 Execution by Capias ad satisfaciendum is showed. 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 Manor. 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 lie 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 showed 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 man's ground. 1. Division. 1. OF what things Wast may be committed by the Civil Law. 2. Cutting of Wood in Sylva caedua by the civil Law is no Waste. 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 unresistible, 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 silva 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 waist. 3. Division. 1 That by the common Law, he that cometh to land by an other man's grant, aught to use it according to the grant. 2. The digging for coal or clay in the land demised is Waste by the common Law. 3. The suffering of the ground to become rushy, or weedy, by the common Law is Waste. 4. That the Civil Law agreeth with the common Law, in suffering one to amend conduit-pypes in an other man's ground. 3. Division. 1 The punishment of Waste by the Civil Law. 2. The punishment of Waste 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. heirs are instituted, they are not reputed as one heir. 5. That by the common Law Parceners are reputed as one heir, as to the descent 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 jointenants, and Tenants in common, as to parceners. 2. The three several actions against Parceners, jointenants, and Tenants in common by the Civil Law. 3. Division. 1 diverse kinds of Partition at the common Law. First: A partition to have 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 parts cohaerentes is divided, and where a thing that hath parts 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. (Simo) doth signifieth an uncertain cause at the common Law. 7. (Simo) 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 than 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 quite contrary to the aforesaid assertion of the vill Law. 5. Division. 1 Three sorts of impossibilities at the Civil Law. 2. What impossibilitas juris is at the Civil Law. 3. What impossibilitas 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 law taketh conditions many times strictly. 7. Division. 7 There may be 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 universum ius defuncti. 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 be 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. Giving 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 FULBECKE. Opinionum commenta delet dies: Nationum judicia confirmat. LONDON Imprinted by Thomas Wight. 1602. To the courteous Reader. Courteous Reader, when Sulpitius returning out of As●a, sailed from Aegina to Megara, he began to cast his eye, and bend his contemplation to the regions round about him: behind him was Aegina, before him Megara, on the right hand Piraeus, on the left hand Corinth, which had been in ancient time very flourishing Cities, but were now ruinated, prostrated, and buried 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 wandering 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 be 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 have 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 only 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 Hebrews, the prudent Grecians, the admirable Romans, the noble hearted Carthaginians, the victorious Macedonians, the deliberative Turks, the politic Italians, the chivalrous French, the most puissant & invictis Romano mart Britannis, a 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 duces: assuesse futurae Militiae: Latium retrò te confer in aewm. b Claudi. de quart. Consulat. honour. . 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, have been thanked for their hope. For mine own part I crave no thanks, 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 FULBECK. 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, have full power and authority to seize the lands and goods of their subjects, 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 immemorial, all Nations have 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 practice of all Nations Democracie hath been bet down, and Monarchy established. fol. 28 Chap. 7. Of the Law and justice 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 have 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 have consented. fol. 68 Chap. 11. That all Nations have both secretly, and by the course of their overt actions acknowledged and yielded to the Truth of the Laws and commandments 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, Traitors, Revoltes, and Usurpers. fol. 81 Chap. 13. That by the Law and practice of Nations, war is not to be maintained against Infidels only, 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. ALL Nations in putting difference betwixt times and seasons have rather followed a popular and common observation, than the precise rules and principles of Astronomy, accounting it more convenient and requisite, that since 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 posteriority, 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 have defined it a dimension perceived by the conversion of the heavens. 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; c Plat. 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 winter's day. d Censo. c. 4. de di. na. But though time be as much obscured in eternity, as a small penny is amongst the riches of Croesus, 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, e Cic. lib. de sin. 4. so that Plato his definition hath relation to the cause of time; Cicero's to the persons that make use of time. Philosophers have 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 parts of time with a popular balance, and according to common sense, taking that course to be most suitable to my profession. The parts 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 searched 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, years f 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 score, and five days, 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 g 18. Elizab. 345. Dyer. . by which account (if you subtract the hours and half days) the quarter of the year will fall out as it is in our Law set down, to be ninety and one days; and the half year, a hundred eighty and two days, h Ibidem. which was almost fully signified by janus his image in Rome, in whose right hand was the number of three hundred, and in his left hand fifty and five. i Macrob. lib. 1. Stur. ca 9 Others have 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 quarreleth with Romulus his Astronomy in this manner: k ovid. lib. 1. faster. Scilicet arma magis quàm sydera Romule noras. Yet if the course & circumduction of their year be well observed, it will appear to have contained the full space of twelve months, as may appear by Pliny l Plin. lib. 2. ca 9 , Macrobius m Macrob. 1. Satur. ca 12. et lib. 1. in some. Scip. c. 6. , and Plutarch n 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 novissima solis. Which course seemeth to be agreeable to the course of nature, because then the sun beginneth to return unto us, and therefore we may rightly derive the beginning of his circuit from thence: The year is divided into the Spring, Summer, Harvest, & Winter. The Romans' did account the spring that space of time which was betwixt the Calends of March & the Calends of May, o Livy. lib. 34. but the most common & current 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 for a virendo, as summer is called aestas ab aestu, and then is said to begin when heat beginneth. p 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 divers countries have made divers limitations of the spring, and therefore if it be agreed betwixt Titius and Seius that the beasts of Titius shall pasture in the grounds of Seius all the spring time, the time shall be limited according to the dimension of the springtide 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 man's ground be granted to Titius, Seius, Caius, and Sempronius, so that Titius shall have 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 cuique tribuere, and give no erroneous judgement. 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: q Vlp. 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 have 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 named aestus ab aestu the spring can have no part in the summer, for the spring is mean betwixt heat and cold, and therefore the said division seemeth to be unproper, for proprie non dicitur quod non dicitur secundùm quod sonat; r Baldus in l. vlt. c. de haer. instit. and in Swetia & other nations lying under the Northern Pole 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 shall not be 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 them 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 upon 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 circle 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 cold, are the times of heat and cold distinguished. The month had his name of the Moon which in the Greek tongue is called Mene: and the reason of the name is because the month is measured by the circumvolution of the Moon, as Plato, s Plat. in Cratil. Varro, Cicero, and others have expounded it. Some do assign to the t Varro lib. 5. de lingua Lat. Cicer. lib. 2. de nature. de or. month twenty seven days, and eight hours: others twenty nine days and twelve hours: they do measure by the motion of the Moon from point to point in the Circle, 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 days which doth consist of the twelve lunary 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, u Plut. in vit. Caesar. neither is this abhorrent from comen 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. have 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 intendment 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. x 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 than 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 rise & settings there are of the Sun, so many days he maketh. Aristotle more exquisitely, Dies est motus Solis supra nostrum horizontem. a Aristotle Topic. 5. Two kinds of days are most in use, the civil day and the natural day: the civil day it is therefore termed because divers cities and countries made great diversities of days, to which they did allot several compass of time. The Romans did deduce the day from midnight to midnight u Pliny 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 circle which is carried through the tops and poles of the heaven: and every region hath his meridian of one sort though they have divers 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 have done rightly, the Athenians and Babylonians not rightly, the Romans' most rightly, who have not as the other nations contrary to the order of nature, placed the night in the midst of the day, but have made the night as the two extremes of the day, & therefore have placed part of the night in the beginning of the day, and part in the end: of which consideration our law may seem to have 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: b Crompt. I. P. tit. indictamenta in sin. lib. fol. 224. but the reason of the Roman constitution is learnedly delivered by plutarch: c Plut. in quaest. Roman. qu. 83. at midnight (saith he) when the day of the Romans 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 than that of the Vmbrians, because the beginning of a thing is rather to be 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 have & to hold for twenty & one years thence next after ensuing, & the lessee entered 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: d 11. Eliz. 2●6. Dyer. so that I cannot see upon 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; e 5. Eliz. 2●●. 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; f Comment. ad l. Titius § Luci. de lib. & post. the night as Plato defineth it g Plat. 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 be 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 upon 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 upon 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 eventide is more like to night, whereupon ensueth that twilight must needs be 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 Romans' were not in use during the space of three hundred years: 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 be 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 part of the day is spent in the first seven hours, if you account from the first hour to the seventh inclusiuè, as namely, from six a clock in the morning to twelve a clock: for then there will remain to the other part of the day but five hours; And the former part of the day is not only the better for the number of hours, but because men in these hours are more apt for the dispatch of their business: Wherefore Nonius h Noni. lib 9 de compendiosa doctrine. upon 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 therefore he that demandeth six pence for travailing to a place on foot from eleven to five, to which an other hath gone 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 than imagination? It hath received a definition somewhat obscure of Plato: Momentum est quod nullo prorsus in tempore est i 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 beneficio sterile, aut vacuum laud k Plini. in Panegyr. , the existence of a moment cannot possibly be discerned, and therefore 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 have 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, ut omnem respuant moram, as in the Civil Law is well noted l l. 23. §. vlt. 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 m l. in suis. D. de lib. et post. : and therefore it is commonly said, it is done ipso iure, or it is said ipso iure, or ipso facto. But this course can not be 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 seize and take them n l. 5. §. vlt. de acquir. re. ●o. , 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. dieth, C. entereth into the land, and enjoyeth it, as an occupant; the Law because it will not have the freehold in suspense, doth imagine that it was presently and immediately in C. after the death of A, and that he entered 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 parts of time, some thing should be spoken of the differences of time, which I will handle very briefly: for the matters precedent have 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 man's life o l. 1. §. pe. de off. pre. urb. l. 2. C. de his qui latr. ) and therefore he that hath purchased land for his life, is termed Perpetuarius p Alci. lib. 1. parer. g. c. 37. : and in the common Law these words (a touts iours) make but an estate for life q 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 than ponderous, Vetus accipietur quod non est nowm r In l. 11. de trivi. leg. : And therefore the law of the twelve Tables they call their ancient Law, and that which followeth it the new Law s 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 t 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 u 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, etc. An uncertain time is signified by these words; before, after, in times past, some time, about such a time, etc. But there be divers 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 borne of Martha, within three days after it be borne, for I know not whether any shall be borne: 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 passed 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 divers 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 days 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, have full power and authority to seize the Lands and Goods of their subjects, condemned for heinous offences. IF any man be so straightly minded, that he thinketh this prerogative to be too large and ample for an absolute Monarch: let him think there withal 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 countervailable 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, & justice, doubted not by public judgement 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 c Bodi. lib. 5. de repub. c. 3. . And they have 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 Gods, and therefore they were called Sacramenta d Festus in verb. sacrament. . But the Athenians did give only 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 undecim-uiris capitalibus ad extremum supplicium traditi: bona eorum publicata, decima Mineruae data, domus eorum solo aequatae: And although justinian the Emperor did upon some scrupulous conceit abrogate the Law of giving the goods of condemned persons to the public treasury, and did therefore establish a Law, that they should remain to their children f Authent. bona damnato. de bonis d●mnator. C. . Yet divers held this Law to be new, & different from the course of ancient Lawmakers: for even in the most ancient times in case of high Treason in all common weals of the world, such forfeitures have 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: & therefore were such goods conveyed away by Law from wife and children, because for the most part they were unjustly heaped together for the advancement of wife and children. But such prerogatives have 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, & therefore Baldus calleth them ᵍ sacra sacrorum, and Cynus, individua 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 i Bald. con. 174. lib. 3. et con. 193. eo. . And so it is said in our Law, that where the King hath any commodity in the right of his Crown; as if he have 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 divers degrees k 10. Elizab. Com. Information pur 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 only did meddle with the Mines of gold and silver that were in it l Fitz. Na. br. Corrod. 232. : And by the grant omnium & singularum Minerarum, these Mines shall not pass m Com. Inf. pur Mines ib. . And though the king grant to one the return of all manner of writs, yet he shall not have the return of the summons of the Exchequer, because that toucheth the Crown, and is not betwixt party and party n 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 justices were in great doubt o 1. H. 7. 23. . But 46. E. 3. it was held by Knivet justice, that a man might claim a franchise of Infangtheefe, and Outfangtheefe, and waif and stray by prescription; but he cannot have 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: p 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 lie in prescription: but in such things as belong to the crown, & the title of them doth not grow by matter of record, as waif, stray, wreck of the sea, treasure found, and the like a man may prescribe in, q 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 be directed not by their own voluntary conceits or unsatiable desires, lest it happen that magna imperia, be magna latrocinia: for good governors will not imitate the lewd monarchs of nations, as Caligula, Nero, Caracalla, Carinus, Roman Emperors, 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 be 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 subjects which was profitable to their ruler, like to that prince of pirates and robbers in Heliodorus, r Heliod. lib. 1. Aethiop. histor. Si imperij lege utendum fuisset, prorsus mihi velle suffecisset: Like to that saying of julius Caesar the usurper. Sylla literas nescijt qui dictaturam deposuit: mecum homines consideratius loqui debent, ac pro legibus habere quae dico: s Sueton in Caesar. like to that of julianus though spiced with some sprinkle of mildness: Polliceor absque omni praerogativa principum, qui quod dixerint, vel sensuerint pro potestate authoritatis justum esse existimant: t Ammian Marcell. lib. 23. or like to that sinister clause of the Pope's insolent vanity (de plenitudine potestatis,) the last of which words Baldus playing withal, putteth in stead of it tempestatis: u 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 law 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 only 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 be express words of restitution: and as to the goods, the Queen is entitled to them without office: x 29. H. 8. Br. chart. de pard. 52. so if it be found by office that I. N. the Queen's tenant was seized of certain lands, and died 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 pardoned and released, but not the issues, and profits: for the Queen was before entitled by matter of record a 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 be restored to him without actual donation. And Xenophon sayeth, that it hath been a perpetual law amongst all men, that all things taken by war, whether they be money, goods, or men, do belong to them which took them: b Xenoph. lib. 7. Cyropae. and Thucydides affirmeth the same to be a common law to all nations: c Thucyd. l. 3 howbeit the Romans rather by mercy then rigour of law were only content with the tenth part of the goods, and did remit the residue to the conquered persons. d Appian. lib. de bell. civil. 2. And it hath always been accounted the property of barbarous nations to have no law written nor ratified by common consent, neither touching these rights nor prerogatives, nor other matters, but only the voluntary conceit of the monarch, as Livy hath judiciously observed: e Livi. lib. 37. But Aristotle maketh one exception from the rule, and that is of the Spartan Kings, whom he affirmeth to have directed their actions by prescript of law: and Diodorus f) Ar. 3. polit. Siculus saith, that the Egyptian kings did first begin to rule by a settled and determinate law, and that all other nations were governed by the changeable will of their sovereign, g Diodor. Sicul. lib. 2. and the Romans did after refine themselves as appeareth by Pliny 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, sed leges supra principem. h Plin. in Panegyr. But to open and declare further the sovereign and ample authority of monarchs over the lands and goods of their subjects, though it have 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 subjects: 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: i § Sed natural. instit. de iu. na. as I have sufficiently showed in my Direction to the study of the Law, Cap. 7. & 8. but only of such things as belong to them by the Civil law: yet by the opinion of the later Civilians this is held to be no law, but that the Princes have for special causes free disposal of their lands and goods as Decius fully proveth k Deci. Cons. 209. in casu 2. 69. consultus. 390. quoniam 519. visis. 557. accurate. , and this later opinion seemeth to be 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 law: so that they are not altogether parcel of the law of nations: l Bal. & ●a. in l. omnes. C. Si con. ius vel utilitat. pub. Again the right of demesne and property is not alike in all nations, m Herodot. li. 4. Strab. lib. 11. Arist. lib. 2. polit. Tacit. de mor. Germa. Caes. lib. 4. & 6. de bell. 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 subjects 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 n l. 2. C. de prec. imp. off. and common law expressly prohibited: for the king cannot grant to any person that he shall not be impleaded or sued, in this or that action: & though his highness may grant that I. S. for trespasses or any thing done wrongfully in his manor of Dale shall hold conisance of pleas within the same manor, yet in this case he doth not take away the action of the party, but doth only restrain him to bring his action in a certain place: o 8. H. 6. 19 But here it may be objected that a king or absolute monarch may p) li. vlt. C. de consul. without cause seize the lands & goods of his subjects: for it is plain that a king hath more power over his subjects, than the father hath over his children: but by the civil law the father may take away the goods of his children when he will: q l. placet. 79. D. de acquir. hear. l. acquirit. 10. D. de acquir. re. do. therefore the king may take away etc. To this reason grounded upon the civil law, I do thus answer, that by the law of nations kings have not such an indefinite power over their subjects as fathers by the civil law have 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 subjects, 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. r l. Venditor. 13. D. de come. praed. And to that purpose Cicero speaketh well: Videndum erit ei qui rempub. administrabit, ut suum quisque 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: s Deutero. 17 and by reason of a private title Naboth would not sell, or change his vineyard with Achab t 1. Reg. 21. and in the inauguration of the king of Hungary this was exacted of him by oath: ut iura regni integra conseruaret: u C. in tellect. 33. ex tr. de iureiuran. And in the civil law it is said, Qui pleno iure Dominus est, alienandi, dissipandi disperdendi, ius habet: a l. 7. cod. de relig. l. sed etsi l. 25. §. consuluit D. de hae●ed. petit. And again, suae quisque rei arbiter, ac moderator est. b l. in remandat. 21. C. de manned. So that it is evident that without cause, the property which subjects have in goods and lands may not be altered by their prince. And therefore wittily sayeth D. Gentilis, that they which argue to the contrary do not dispute, or draw their arguments ex castis fontibus Philosophiae, aut ex ipsis iurisprudentiae rivis, sed escholis sophistarum: hallucinati sunt Theologi, adulati sunt iurisconsulti, qui omnia principibus licere asceverarunt: c Alberic. Gentil. Dec. 1. disput. 2. disput. I would not be mistaken in this Chapter, sithence I hold an indifferent course betwixt prince and people: neither consenting to them which say, that princes may seize the lands and goods of their subjects without cause, nor to them which think that they may not seize their lands and goods for any cause: but my resolution is, and the sum of this discourse is, if it be diligently and impartially observed, that princes may lawfully claim, and take to their own use the lands and goods of their subjects for the causes abovesaid, and prescribed by law, 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 therefore 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. f §. 2. de bon. possess. & apud Vlpi eo. tit. reg. 19 This foundation being laid, I hope my assertion may firmly stand that the law of England in giving to the Queen the lands and goods of subjects for some peculiar causes is just and reasonable: as when a true man is pursued as a fellow, and he flieth, and waiveth his own goods, these are forfeited as if they had been goods stolen. g 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: h 28. H. 6. 5. howsoever M. Parkins holdeth opinion that attainder by outlawry shall have 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 shall have relation to the time of the felony done, according to the supposal of the indictment, as to lands and tenements: and so it is of an attainder by confession: i 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 be made void 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. k Stamford fol. lib. 3. 31. ●. but he saith that the forfeiture of the goods by attainder by outlawry shall have relation to the exigent, and forfeiture by attainder by verdict shall have relation to the verdict. l 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 uncles and nephews of the right of inheritances, and for the deciding of it, the Emperor 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 days (for it was about the year of the incarnation of our Saviour nine hundred forty and two a Witichindus lib. 2. histor. 2. Sigebert in chronic. Ottonis 1. ) and a formal trial referred to God, when man's 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 uncles. Amongst other nations divers contentions have risen about this matter: for when Eunomus the King of the Lacedæmonians 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 b 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 have 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 have the land c 19 H. 6. 6. . So if a man enfeoff an other upon condition, and the condition is broken, and the feoffor dieth without issue his wife privement enseint, and the brother of the feoffor entereth for the condition broken, and after a son is borne, he shall avoid the possession of his uncle, & may lawfully claim the inheritance d 9 H. 7. 25. . And it is likewise said, that after two, or more descents, the heir afterward borne claiming by descent may enter into the land; but he shall not have a writ of Account for the mesne profits, nor any writ of Waste e 9 H. 6. 23. . But in cases of purchase the Law taketh a difference, and therefore it is said 5. E. 4. by Billing, that if a man devise land to a man, and his heir, and the devisee dieth having issue a daughter, his wife being privement enseint with a son, who is afterward borne, the daughter shall retain the land in perpetuum, which the Court granted f 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 borne afterward, where an other hath entered before g 9 H. 6. 23. 2. 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 adjudged to Areus h 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, Edmund, and Thomas, the sons of king Edward i 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 judgement of the Peers, who adjudged that Erkenbalde should have the same power and interest in the kingdom, which his father might have had if he had survived k 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 l Herodot. lib. 7. , justin m justinus lib. 11. , Plutarch n 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 borne after the father had attained to the kingdom, was to be preferred before the elder brother who was borne before; for which cause the kingdom was adjudged to Xerxes the younger son, who was borne of Darius being king, whereas the other was begotten of him being a private man: But this judgement 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 borne 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 judgement, did now adjudge the kingdom to Arsica o Plut. in vit. Artaxerx. . Neither am I moved though in the contention for the Dukedom of milan, betwixt Lodwick and Galeatius brethren, whereof the one was borne before his father obtained the Dukedom, the other after, the contrary were determined for Law p Guicciard. lib. 1. histor. : For by the most examples of every common weal, and by the continual practice of nations most civil (which only 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 jews, did prefer in the succession of his kingdom Antipater, who was borne before he was king, before Alexander and Aristobulus begotten after he was king q joseph. lib. antiquit. 16. . And many years after in Hungary, Bela their king being dead, Geysa being borne when he was a private man was invested with the Crown r Fl. Blondus Decad. 2. lib. 6. Micha. Ritius lib. de regi. Hungar. 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 borne when his father was Emperor: But the matter descending to arms, and battle, victory did adjudge the Empire to Otto s 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 t Procop. lib. de bell. Vandal. 3. . So when Charles the king of Sicily died he had two sons, Charles Martell, 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 Pope's means, Robert obtained the kingdom: But the Emperor Frederick reversed this sentence, and the Pope canceled his rescriptr. But D. Bartolus giveth this reason of the Pope's 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 investiture of the Lord of the fee x Barto. in Arth. post fratr. C. de legit. haered. . Neither is it material that the Nomads, Barbarians, did prefer the younger brethren before the children of the elder brethren, as Strabo reporteth: 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. a Strabo lib. 16. yet I will grant that in the succession of regal dignities, the worthiness of blood is less to be respected, then in the succession of common inheritances, because in that case the commodity of the subjects, and the ability of them that are to succeed is politicly to be respected: And therefore divers Civilians do with united consent pronounce that the good estate of the kingdom and subjects, the profit, peace, and safety of the same, is more to be heeded quàm sanguinis series, the course of blood b Luc. de Pen. in 5. nepot. C. qui num. lib. 10. et in l. 1. C. de lyro. lib. 12. Bald. in c. 1. de feud. March. . And Roboam preferred Abias' his younger son, before his elder brethren in the succession of his kingdom c 2 paralip. 11 . And Solomon the younger brother d 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, lest a king do by his choice prejudice his subjects; as Micipsa did by the adoption of jugurtha e Sallust. in bell. jugurth. . But the reasons are many and forcible, wherefore the worthiness of blood shall in the course and conveyance of inheritances be principally respected. First, Ius quod personae inest per modum substantiae, est ab ea inseparabile, et in nullo alio subiecto potest verificari f 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 patrician, who is borne before his father was made a Senator, as well as he, who is borne after that he is possessed of the senatory calling g 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 be 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 be 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 than the common Law, which preferreth the brother before the sister in case of descent: the elder brother before the younger, whereas the middle brother purchaseth land: the sister before the uncle, and the uncle before the cousin h Littlet. tit. Fee simple. , 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 simple, and dieth 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 justices decimo quinto Elizab. in Clears case, that in a collateral descent from any which purchaseth lands, and tenements, and dieth without issue, the heirs 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 father's side, and his issues be they male or female shall be preferred before the brother of the grandmother of the father side and his issues: And so the brother of the great grandfather of the father's side, namely the brother of the father, of the father, of the father of the purchasour and his issues be they male or female shall be 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 than the male in law. And it was likewise agreed, that if the purchasor died without issue, and hath not any heir of the part of the father that the land shall descend to the next heir of the part of the mother, that is, to the race of the heir of the males of whence the mother is descended, rather than 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 father's 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 proximity of the degree; therefore it was adjudged that the cousin should have the land. i 15. Eliz. comm. cleres case. 442. The fourth Chapter. That in making title by prescription and continuance of time immemorial, all nations have 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, aeurum, chalibem, deglutio, ferrum, stagna, lacus, fontes, ebibo, tum flwios, Tabida consumit lignum, lapidesque vetustas: nullaquè res maius tempore robur habet. If by the course of nature time be such an incroacher upon other things, then surely art & 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 law there is required just title which the common law requireth not: and bona fides a Gl. si. c. illud de prescrip. which the common law requireth not and continual possession, which the common law only 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 law bono publico intraducta est usucapio, & praescriptio ut sit aliquis litium finis: b b. lib. 1. de usucap. whereupon that speech of the Lacedæmonians in Isocrates is grounded: We hold this land given unto us by the posterity of Hercules, confirmed by the Delphic 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 be confirmed by prescription of long time: we have held Messana more than four hundred years. c Isocra. in Arch. And so jepthe did plead prescription against the Ammonites; d judic. c. 11. This land (said he) have we possessed three hundred years. The French maintain their title of France only by prescription, as Bodinus confesseth: dd 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 heirs, e Graft. in H. 5 not to Queen Katherine and her heirs: f Pet. Mar. comm. in lib. iud. And some Divines hold (for others do oppose themselves against this law of prescription) g Aug. de te. ser. 105. Epiphan. and observe that the jews never made question of the title of their Semi, because the Canaanites did defend themselves by the prescription of 500 years: wherefore Artabanus the Parthian king did, as Tacitus sayeth, Per vaniloquentiam vainly demand of Tiberius the territories & possessions of the Macedonians having been h) Tacit ann. li. 6 a long time possessed of Cyrus and Alexander. And Soliman more sound did demand the rights of Constantine the Emperor after a thousand years. i iovi. 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: k Herodia. 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, l Livi. lib. 34. alleging that they ought to have no more than Dido the Tyrian Queen enjoyed, which was no more than could be compassed by the hide of an Ox being curt into thongs, for they had possessed these lands almost seven hundred years: 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 law 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 law, which think the king of France by prescription to be exempted from the emperors subjection, m Fulg. Sacc. lib. 1. C. tit. 1. against whom rather adulatoriously then aptly Alciat replieth, that no prescription of time will hold place against the Empire: n Alciat. lib. 5. de just. for that is not true in a prescription of time, which is immemorial, 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 years. o 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 only in such case where neither possession hath been had, nor claim made against the said king or Emperor, for if claim only have been made as the kings and Queens of England have 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 have lost the corporal possession in such case I do not think that the prescription of a thousand years 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 be seized of an advowson, and the church happeneth void, and he dieth, and the six months do pass, (nay suppose six score years do pass) p) 14. H. 7. fol. 22. than an office is found, the king shall have 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 be served in the mean time betwixt the laps, and the kings presentment: q Ibid. fol. 21. It is answered by some that the ordinary may present one who shall be removable at the kings will, and some think that he shall sequester the profits of the benefice 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, qq 8. H. 5. Travers. 47. but in this case the reason is because he can have no other estate than he which forfeiteth, and he which cometh in of the estate of an other can have no greater right than he had: for if a man have land in the right of his wife, or in the right of a Church he can not have it otherwise then the Church or the wife hath it: r 18. E. 3. 20. so if there be Lord and tenant, and the tenant alieneth in mortmain, and the Lord entereth, yet he shall have only such right in the land as he hath in the signiory, notwithstanding that the statute do say, Quod proximus dominus intrabit & retinebit in feodo: s 39 E. 3. 38. 50. E. 3. 21. l. 5. E. 4. 61. For this is grounded upon natural reason, and naturalia sunt immutabilia: and the princely prescription must be 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: t l. 9 C. de pl. act. Deci. 3. consi. 108. and iovius is likewise angry against the king of France himself for keeping Perpinianum in the like sort: Parum sincera fide (saith he) veteris pacti conditionem multis cavillationibus involuebat: u jou. lib. 1. for it is true that Shafalus saith, in quaestione valde dubitabili non est praescriptio. x Ceph. cons. 102. But surely bonafides 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. a Bellar. 5. contr. But he doth not possess them bonafide, because he can not by any special mean convey them particularly to himself, for as Doctor Gentilis hath well observed: An Turcae opinio latrocinantis cogitat de justa voluntate Dei. b Alb. Gentil. lib. de iu. bell. 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 have violently taken from the owner, if they have had possession during the space of fifty years only. c 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 man's lands or goods a long time should not please himself therewith, but impute it to fortune which hath hindered the lawful owners. d Demosth. ad maca. Is any thing more to be laughed at then that which is said of some interpreters of the law, who are not to be laughed at, that the kingdom of Spain may now be claimed by the Roman Emperor, by reason of his ancient imperial right, whereas it is manifest that since the time of the ancient Roman Emperors, 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 divers people of the world in the knitting and celebrating of marriage, he might as well number and observe the diverse-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 only endeavour to prove that which is contained in my assertion, that by the consent of all nations etc. The 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 conjunction of man and woman, containing an individual society of life, and the participation of divine and human right a 30. q. c. nullam. , where it is said, a lawful conjunction, 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 possit alter altero invito religionem intrare b 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 c Codi. ap. C. ulti. c. 27. q. 2. , Fides, Proles, and Sacramentum: Fidelity which is put in the first place is the heart 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 evites, 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 Pope's Tobacco 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 d 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 exclaimeth against Romulus for marrying the Sabine women against their wills, and accounteth it rather a rape, than a marriage, Raptas sine more S●binas: sine more, that is, contrary to the custom of nations e Virgil. 8. Aeneid. . And Propertius inveigheth against him for this more vehemently ee Propert. 2. Eleg. 6. : — tu criminis author, Nutritus duro Romule lact lupae Tu rapere intactas docuisti impune Sabinas'. Yea divines Tertullian and S. Augustine have sharply reproved this fact of Romulus f Tertul. de de spect. et adu. val. , and Cyprian agreeth unto them, reprehending Romulus in this manner, Matrimonium facias rem concordiae per discordiam auspicaris, rapis, faerocis, fallis, & nuptiae tibi sunt rupta hospitij faedera g Cypri. lib. 4. de ido. na. . By the Civil Law marriage may be concluded by an oath, which being but a contract, it called sponsalia de futuro h 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 i 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 k 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, junguntur taciti contentique auspice Bruto l Luca. lib. 2. . But I would not be so understood, as though I should have 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, et ignis interuentus: and therefore in my opinion D. Hotoman is not justly reproved of D. Gentilis m Alberic. Gentil. lib. 3. lectio. et epistolar. c. 6. , for holding that this deductio in domum is the formal cause of marriage, for though the Emperor say n L. 15. D. de cond. et dem. , uxor fuisti: deductio in domum ostendit, so that by the opinion of Gentilis, this deductio shall be only a proof, and argument of the marriage & no substantial form of it: yet by his favour this is neither 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 judgement, if I have any judgement, be far inferior to the worthiness of Gentilis: yet I acknowledge them both to be worthy men, et vitulo tu dignus & hic. But to examine the rule of the Emperor, which before I spoke of, non impletur nuptiarum conditio nisi nuptiarum accedat festivitas o 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 p 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 only censure them somewhat agreeably to Senecaes' q Augusti. lib. de civit. dei. 6. c. 10. ex Senec. lib. de super stiti. et matrimon. censure of certain points of the civil theology of the Romans', Haec omnia populus servabit tanquam consuetudine recepta, non tanquam deo accepta. And though Gentilis 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 r 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 s Chytr. lib. de reb. orb. arcto. ab anno 1580. usque an 1590. Eyzinger. in thes. princip. . And the cannon Law which D. Gentilis too hastily calleth irrationale, erroneum, caecum, avarum totum t Alberic. Gentil. 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 u Gof. in tract. de contrah. . But in deed these very words, duxisse uxorem, 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 have been above showed: The final cause, as all will agree, is the propagation of children x 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 a Modestin. in l. in liber. 24. D. de rit. nup. . another Civilian holdeth, that a woman to whom one hath showed an husbandly affection, aught in continuancc of time to be accounted his wife b 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 c 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 d L. 3. §. 1. D. de donat. inter vir & uxor. : ingenuaque mulier domi ante testationem pro uxore habenda est d. These are the oracles of the parrots and parasites of the Roman Emperors, 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: Upon whose reverend opinions the Pope sprinkleth the holie-water of his dispensations, yea and dispenseth for incestuous marriage, not only with Dukes, and noble men, but as Angelus Perusinus showeth, even with Barber's, Tailors, and Butchers e Angel. Per. in l. matrem. § filiam ad Treb. . But it is fitly said by some, that he doth rather dissipare quàm dispensare f Felin. post Doct. in C. quae ecclesiarum de constit. . And others have 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 g 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) sed inumbratur: and therefore say they, the dispensation is lawful h Arg. c. sedes de rescript. l. 3. §. permit. , an argument drawn from the owls nest, and from no place of Logic: But the Emperor Theodosius speaketh only of a lawful and honest consent, in more modest terms, saying: Matrimonium absquè ulla pompa et celebritate nuptiarum, atquè adeo absque ullis dotatibus instrumentis firmum est, liberique ex eo suscepti justi sunt: Hear the Emperor excludeth pomp from marriage, but not consent: Neither doth he admit concubinage to be marriage i l. si donationum. 22. c. de nup. . It is now showed 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 Ovid's speech importeth: Gentibus est alijs tellus data limit certo Romanae spatium est urbis, & orbis idem m ovid. 2. Faster. . 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 cunabulacuris n Claud. 3. still. . By the ancient Law of the Romans, if a woman had been kept in a man's house by the space of a year, he might claim her as his wife o Hotomanus in comment. ad duodecim tabul. : And by that Law a man might lend his wife to his friend, for the procreating of children p 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 q Appian lib. 2. de bell. civi. , and Quintilian affirmeth the same r 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 s Plut. in comparat. Lyc. et Num. : A brutish 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 acknowledge God, so God delivered them up unto a reprobate mind to do those things which are not convenient: t D. Paul. ad Roman. 1. v. 2● & 28. Now that we have showed that consent is necessary for marriage, it remaineth to be 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 have served, as may appear by these words of Suetonius, writing the life of Caligula: Mar. L. Cassio Longino, consulari collocatam abduxit, et in modum iustae uxoris propalam habuit. But of the Emperor Constantine furtive and privy marriages are utterly condemned and abiudicated: u 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 have the public testimony of the Church are greatly commended of Tertullian: unde sufficiam ad enarrandam foelicitatem eius matrimonij, quod ecclesia conciliat, & confirmat oblatio, & obsignatum Angeli renuntiant, pater rato habet. a Tertullian lib. ad uxor. 2. And the Emperor Leo 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: b Harmenop. lib. 4. c. 4. And by the common law as M. Fitzherbert saith, a woman married in a chamber shall not have dower of her husband's c) Fizh. N. B. 150. N. lands: but he modestly saith, that it seemeth reasonable that she should have dower, M. Parkins peremptorily affirmeth, that the law in his time was directly to the contrary, that the law was so in his time, I must take upon M. Parkins credit: for I have not read (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 have cited, to prove that marriage must be celebrated in a public place, and in public manner, 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 girt 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 neighbours is d) Luk. c. 12. v. 35. 36. requisite to the celebration of marriage: and Pope Innocent the third reporteth, that this was no new guise, nor any pope's invention, but the custom of the ancient Christian Churches, that conventiones matrimoniorum in ecclesia promulgentur. e cap. 4. extr. de cland. desp. And this promulgation is in Lombardy called Bannum, f c. cum tua extra despons. in England the Banes, or ask in the Church: & by the custom of divers common weals, it is called manasse, the giving of hands: g in c. cum tua. 6. qui matr. accus. poss. & so is the rule of justinian the Emperor, 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 be a public celebration of the marriage according to the rite & solemnity used in Christian churches: h justin. Non. 74. §. 4. so than 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 be known, and to be publicly notified and ratified: for as to the age of the party, who is to be married, that he should be plenis nubilis annis, or that he should have power of engendering, ut justo accedat robur amori, or that they may be equal in degree, because dulce jugum paritas, these do not make marriage, but cause it to be 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 only be proved by circumstances, yet consent is only verified in an express & unfolded will: wherefore D. Baldus saith well, that a neutral consent, which is not demonstrated by word, nor by deed, 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 only do knit the marriage, or the father's consent be necessary, as to that point the civil law, which in this matter all nations follow for the reasonableness of it, standeth thus. Eorum qui in potestate patris sunt sine voluntate eius matrimonia iure non contrahuntur, sed contracta non soluuntur: contemplatio enim publica utilitatis (that is to fill the City or common weal with people) privatorum commodis praefertur: k Pant. l. 2. senten. And again, Si forte pater concordans matrimonium, that is, a fit marriage) & fort liberis subnixum (that is, confirmed by procreation of children) velit dissoluere, et certo iure patriae potestatis turbare, sic erit res tractanda, ut patri persuadeatur, ne acerbe patriam potestatem exerceat. l lib. 1. de lib. exh. The sixth Chapter. That by the practice of all nations Democracie hath been bet down, and Monarchy established. DEmocracie I have always taken contrary to the ancient division of Monarchy, aristocracy, etc. to be no form of a common weal, if it be 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 people's 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: a Xenoph. in lib. de repub. Atheni. which commonweal notwithstanding Bodinus calleth untruly omnium popularium laudatissimam, Plutarch as untruly, 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 only excepted) are far short of the Athenian estate: and Machiavelli did abuse his own pen, and the patience of others, in one place preferring Democracy before all other kinds of government, b Machia. in obseru. in Li●i. yet in another place, showing how he would have Italy restored to the ancient glory and excellency, he showeth that that can not be done but by a monarchy, and only by the Pope's monarchy, c Machiavelli. in lib. de princip. c. 9 in this point accomplishing the part rather of a magician, than a mathematic, wishing for that which the devil would desirously effect, but imagining that which in truth can never be: yet again he departeth from this opinion, when he preferreth the Venetian commonweal before all commonweals. d Machiau. in Livi. Plato was wont to call Democracy, Nundinas populares, the people's fair: wherein every thing was sold for money. Aristotle disagreeing from him in many things, yet he agreeth with him in this, utterly condemning Democracie, using not only strong reasons of his own, but Homer's authority for it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, and Maximus Tyrius a worthy man in his time, that he might e) Maxim. Tyri. orat. 3. convince Democracie 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 upon the people's brains, he shall easily and clearly perceive, that whosoever shall but ground his own estate, much less the estate of the common weal upon the people's fantasies, domum ex luto facit, & findeth nothing more certain than 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 silkworm, & 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 than 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, therefore he is not to be followed of the best: who was more favoured by the greatest part of the Troyans' then 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 honey 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 Aeneas? that she was Troiae & patriae communis erinnis': what thought Antenor, a wise, just, and virtuous nobleman, Antenor censet belli 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 art should be judges 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 judges, 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. ee Senec. epist. 29. The multitude have this proverb very rife in their mouths (too many to be good) and yet in this glass they can not see themselves, as they likewise said (●mnia 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 senses with fair 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 upon him then the people; & if perhaps they weep for him in this especially the proverb verified, lachryma nihil citiùs arescit: They deal with their idols as the devil dealeth with witches: when they are in prison they leave them: Nay, for the most part none are more prone and ready to accuse when time serveth, than 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 lie upon it: They are like the winds, which Neptune trussed up, and delivered in a bag to Ulysses f 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 firebrands at their tails. What a frenzy is it therefore for any to plant his credit upon such restless brains: as if a man should endeavour to make the sea solid, to make mountains 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 g 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, than he may see Verres accused and convicted of divers 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 judges, 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 dieth 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 h Plut. in Phoci. . But Antiphon that vicious varlet, and steigne of Athens, was by the people absolved and acquitted, 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 i 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 thereof belonged to some few excellent governors k Sallust in princip. Cat●l. . Livy saith, Sub umbra Scipionis urbem terrarum dominam latere, nutus eius pro decret is patrum, pro populi iussis este: Under the shadow of Scipio the City, the Lady of the word did cabbon, his becks were the decrees of the Senate, the commands of the people l 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, an other spreadeth the sail, one keepeth the haven, an other moveth the stern, all goeth suddenly to wrack m Polyb. lib. 6. . Foolish were the Argentinians, Lindovians, they of Seen, they of Genua, they of Florence, who seeking to settle popular government, did pluck up from the root 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 advise of the Pope, and the neighbour-cities, they had wholly submitted themselves to a strange governor n Anton in. et Machiavelli. in hist▪ Flor. . Thus in the end they came to a Monarchical estate. And these Nations which have 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 Africa, 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 o Leo Afer. in lib. de reb. Africa. . The Romans in all their dangerous accidents did acknowledge the government of one to be the best, and therefore chose a Dictator, whose government Appian prettily calleth regnum negatiwm, either because it denied a regal power only 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 p Livi. lib. 6. : And again he saith, that when Hannibal did molest Italy: ad dictatorem dicendum remedium iamdiu desideratum civitas confugit q Livi. lib. 22. , and such was the reverence of the Dictator, that, as the same Livy saith, Dictatoris edictum pro numine semper obseruatum r Livi. lib. 6. . And Appius being Consul, giveth advise to create a Dictator for the bridling of the rage of the people, affirming minas esse consulum, non imperium, ubi ad eos qui unà peccaverunt provocare liceat, agedum Dictatorem à quo provocatio non est, creemus s Livi. lib. 2. . But Monarchy hath been embraced by the people of all Nations, Democracie rejected: as namely, by the Medes, Persians, Egyptians, Parthians, Macedonians, Arabians, Indians, Aethiopians, Scythians, Tartarians, Turks, Danes, French, Mosconites, 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 Deuteronomie: 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 mayest not set a stranger over thee, which is not of thy brethren t 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 u Deuteronom. 33. ver. 5. . And after the return of the Hebrews from Babylon, where they were captives, to their ancient country of Palestine, they did obey the kings of Persia, Syria, or Egypt, till judas 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 have embraced Monarchy, so the wisest men in all nations have approved it: As Homer a Homer. lib. Iliad. 1. , Herodotus b Herodot. lib. 5. , Plato c Plat. in politic. , Aristotle d Lib. vlt. Metaphisic. , Xenophon e Xenoph. in cyrop. , Plutarch, Philo f Plut. in lib. de creati. Regis. , Apollonius Thyanaeus g Philostratus. , S. jerom, S. Cyprian, Maximus Tyrius h Maxim. Tyri. in orat. , and Bartolus the deep Civilian i Bartol. in tractat. de Regim. civit. nu. 10. , Lucan k Luca. lib. 1. et 2. , Aquinas l Aquinas in lib. de princip. , Erasmus m Erasm. in lib. de instit. princip. , Tacitus, S. Augustin n 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 justice 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 Martial it belongeth to have 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 etc. 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 there is no war without the furniture of weapons, and there is nothing in war which doth not lie 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 a 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 b Luc. 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 be disliked, in that he defineth, War to be force and arms against a strange Prince or people c Lipsi. in polit. : for by that he maketh the outrage and violence of private men and pirates to be 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 thieves; which did deal by such kind of spoil and pillage d 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 iovius speaking of the truce betwixt the Turks and Hungarians saith, that by an ancient custom, they did make small skirmishes and extraordinary incursions upon the borders, if they were not resisted by the preparation of Ordinance planted against their walls e iovi. lib. 36. . War was first brought in by necessity, 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 have no superior nor ordinary judge, but are supreme, and public persons: therefore the judgement of arms is necessary because such war (saith Demosthenes) is against them which can not be bridled by Law f Demosth. de Cherson. ; But process of suit is only for them which are subject: For as there be two kinds of contention; one by trial of Law; the other by trial of Arms: so we may not use the later, if we may have 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 judgement, rather than by blows, and weapons. And so the Ardeates, and Aricines, the Neapolitans, and Nolanes did refer their controversies to the judgement of the Romans g Livi. 3. Dionys. vlt. Cicer. 1. de office . So the Samnites did provoke the Romans to debate their common cause betwixt their common friends h Livi. lib. 8. . And Archidamus said, that it was not lawful to wage battle against them which did offer themselves to be ordered by peaceable judgement: i 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 Umpire betwixt himself, and the Monarch of Assiria: k Xenoph. Cyropaed. 2. therefore they which fly from this peaceable kind of trial, which is nothing else but a disseptation of of words and reasons do digress from justice, humanity, & commendable examples: but it is good to be provided for arms, when the parties will not tolerate indifferent hearing of the cause, which the poets seem to have signified when they feigned Chiron the Centaur, whose upper part did resemble a man, the inferior part a horse, to be tutor to Achilles, l 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; m Plut. in apophth. And as to the bearing of arms, it is certain & manifest, that private men, and people subject, and inferior princes, have no such necessity to make trial by battle, because they may pursue their right by other lawful means in some court of justice: neither have private men any authority to assemble a multitude. It is Places law, Si quis prinatim sine publico scitu pacem b●●●●ue fecerit capital esto: n Plut. lib. vit.▪ 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: o Deci. cong. 20. and therefore by the law of julius it was high treason for any to levy arms without the consent or command of the prince, p 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: q Appian. & Plut. in cat. mi. and upon such occasion they demanded the person of Annibal: and so the Philistines upon like cause demanded Samson, to whom the jews yielded him; r judic. 15. and Cato thought that the army was to be recalled, & Caesar to be yielded up into the enemy's power, because he maintained war in France without the warrant of the people, in whose hands the commandment of war and peace was: s Livi. lib. 4. 16. 18. 19 but without urgent cause and lawful authority there should be no taking of arms or raising of multitude, & therefore it is well provided by the statutes of the two sovereign Queens & sisters, Marie & 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, etc. with force and arms shall alter any laws or statutes. t 1. Mari. parliam. 1. c. 12. 1. Eliz. c. 7. And in ancient times kings had the supremacy over other, of commanding or commencing war, and of m●stering men, as appeareth by the sacred history ●et sometime upon a great or u) 1. Reg. cap. 8 necessary cause, 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 upon 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 Sicily, who when he did foresee the revolt & defection of the citizens of Enna to the Carthaginians, and he could not conveniently send 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 deed: a Livi. lib. 24. therefore Cicero commendeth the enterprise of Octavius 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 them omitted the time of battle, he did well foresee that the common weal being oppressed, nothing could be decreed by Senate: b Cice. Philip. pic. 8. and the Senate did after allow by public authority the war undertaken by Octavius of his own private advise: c 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. d Valeri. Maxi. lib. 3. c. 1 Appi. de bell. civi. lib. 1. For it is necessary (as Cicero saith) in such perturbation and tumult rather to obey times than customs: for in peace we must follow custom, in war profit: but now as to the justice of wars, e) lib. 2. de rep c. 5. if bellum have 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 Sencea: We punish homicides and particular murders, why do we not punish wares 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. f Senec. epist. 96. Men, a mild kind of creature, are not ashamed to boast of bloodshed, when as dumb and reasonless creatures have peace amongst themselves. g Cuia. Critic. not. 1. etc. 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 have peace amongst themselves, how much more ought men to do the like, unless they will be more beasts than the beasts themselves. Cyprian hath the like saying: Homicide 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 have agreed to sins, and that is admitted to be lawfully which is public: h Cypr. 2. ep. 2 And Seneca again, Small thefts are punished, great are carried in triumph. i Senec. ep. 88 Tertullian saith, that wrong is proper to war, and as far as his authority stretcheth, prohibiteth battle to Christians: k Tertullia. adu. jud. but sithence the time of Tertullian, these opinions have been confuted of Divines, Civilians, and Philosophers: for war is according to law 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 wars: for he praiseth the wars of Hercules: l Senec. lib. 1. de benefis. as to Tertullia's saying, he did speak it upon 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 have this poison of war admitted into any commonweal, unless it be to expel an other poison: nor this fury to be let lose, unless it be to cool the fury of others, or upon like necessity. But now let us sift the precedent definition of war more narrowly, and consider how war may be justly maintained on both sides: which both Divines & Civilians m Conua. reg. peccat. §. 18. Soto. 5. de just. q. 1. 7. view. relect. have thus expounded, saying that it may be truly and verily just on the one side, & on the other by ignorance, as by the voice of God the jews did justly move war against the Canaanites, and the Canaanites did justly resist the jews, not knowing God his will and defending themselves: and therefore it was well said of Pope Pius the second to the ambassadors of the king of Hungary, who did speak against the Emperor, that he thought the king of Hungary would not departed from right and reason, and he knew likewise that the Emperor was a lover of justice, howsoever now they did descent by war, and that neither of them thought that he had an unjust cause of war. n Com. Pij. 2. lib. 3. Cicero speaketh fitly to this purpose of the faction of Caesar and Pompey: There was some obscurity, there was variance betwixt two excellent Captains: many doubted what was the best, many what was expedient for them, many what was decent, some, what was lawful: o 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 bond servants to both. Now it is convenient to descend into a more particular consideration of the causes of war, which must not be attempted only upon 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. p 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 dedeserue the hatred of all men as being an enemy to q) Tacit. Ana▪ li. 15. all men: r jor. de o●. but the Turks do otherwise, who most commonly pretend a cause of warfare: and therefore 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 upon a rage or heat of mind to enterprise war. s 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 Moses sought for a good cause of quarreling with the Emorites, though he had a cause absolutely just, namely the commandment of God. For when by virtue of the same commandment 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, we will keep the right path until we be passed 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 justa subest, excutit arma pudor. Just cause of war is the defence of our country, ourselves, our friends, our fellows, & goods. A defensive war is grounded upon the law 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 have 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: t 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 be punished, if they did it not by public decree, but by private malice: therefore David after the death of Saul did maintain war against Isboseth the son of Saul, who did go about to usurp the kingdom of Israel, which God by Samuel the Prophet had given unto David: u 2. Reg. c. 2. and Romulus did therefore fight against the Sabines, because their Dictator Cluitius would not restore the things taken from the Romans by violence, nor yield up into his hands them that did wrong. a Dionis. Halicarn. lib. 3. And the revenge 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: b 2. Regu. c. 20 & duob. sequenti. and that prince hath just cause of war, who pursueth by arms rebels and such as serve from obedience: c c. auctor. it. us. quaesti. 6. cap. scir. 103. quaest. 8. for great injury is done to God, and to the prince, when his subjects 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 d Ep. add 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 have not cast off thee, but me, that I may not reign over them e 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 f 2. Reg. c. 20. . But because a Rebel may not properly be called an enemy, when any such arms are borne against rebels, it is not to be called a war, but an exercise of princely jurisdiction, upon traitorous and disloyal persons g 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 h Lucan. lib. 2. : — nequè enim ista vocari Praelia justa decet, patriae sed vindicis iram. And this is confirmed by Cicero's opinion, who did not think it convenient to send Ambassadors to Anthony, nor 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 had not now to deal with Hannibal an enemy to their common weal, but with a rebellious Citizen i 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 thieves, which either aught to crave peace, laying aside their Armour, or if they will persist in their fury to obtain it by fight, not by composition k 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 upon every judgement given against them, they would presently have returned to weapons. And this slippery revolution of titles, might perhaps have stirred them to Arms, who were in peaceable possession of these lands: so that this would have been nothing else, but a cutting off of one of the heads of Hydra, that an other might grow: for surely there will always be some cause and occasion of tumult, if men may bring into question, antiqua et antiquata. The Romans would grant nothing at all to Rebels, because their course was to be stern to the proud, and rebels in that they are rebels are proud in the highest degree: Neither aught any of their kindred to regard them, but to be of Seneca his resolution: Si arma quis patriae meae inferret, quidquid de me meruerat perdidit, & refer illi gratiam scelus haberetur l Senec. lib. vlt. de beni fi. . And excellent is the saying of Frederick the second to the Faventines: Qui dum potest delinquit, dignus est ut quantum potest puniatur m Sigoni. lib. 18. de re. Ital●. . But to return to the causes of War; There be some causes of making war, which we refer to God, as commanding war; as when the jews did refer to God the cause of the war moved against the Canaanites n 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 o 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 be done to every man, in which action the army is not so much to be accounted the author of war, as the minister thereof p 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 have that land to be his peoples q Esai. 15. : Nay, the very Heathen as the Aethiopians did undertake every war by the Oracle of jupiter r Herodot. lib. 2. . And the Spartans by lots and miracles, were moved to make war and to fight with the Argives s Xenopl●. 4. Graec. . And Aeneas cometh into Italy to maintain war by destinies, and Oracles t Nat. come. 6. 14. . And the Turks 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 Philip, did pretend this defence of his wars (as some testify) that they were against Infidels, and Heretics u 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, which vu Baltas. Ayal. lib. 1. de iur. bell. c. 2. they have 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 x Genes. c. 1. Exod. 9 29. Psal. 24. 1. . And the Lord maketh his Sun to shine both upon the good and the bad y 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 z jerem. 27. 6. . But in grounding war upon divine causes, it is good to be certain of God his will, and not to credit the equivocal prophecies and fantasies of men lightheaded 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 zz Carol. S●gon 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 zzz I. Stow in Rich. 2. . But from wars which display the banner, I will pass to leagues which wrap it up: 2. As wars have been by the Law of Nations maintained, so leagues have been concluded: for as Cicero saith: It a bellum suscipiatur ut nihil aliud quàm pax quaesita videatur a 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, ut bellum excitetur, sed bellum geritur ut pax acquiratur b 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: Romanis & Latinorum populis pax esto, dum coelum et terra stationem eandem obtinent c Dionys. Halicarnas. lib. 6. . And so the Roman Emperor, and the Persian king did establish peace sine termino d Procop. 1. lib. de bell. Pers. , in concluding peace, public profit must be especially regarded; which Hannibal therefore termed vinculum maximum e Livi. 36. : and before him Demosthenes termed it so ee 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 f 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 g Appia. in bell. punic. . And Cato of this matter speaketh to the Spaniards: Id ne fiat uno modo caveri potest, si effectum erit ne possitis rebellare h Livi. 34. . And Iphicrates doth well answer the Lacedæmonians, promising all faithfulness, and all possible security, that he could not rest upon any other faith, or other security than this, that it should be 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 wittily showeth: Quis unquam mortalium juxta viperam securos somnos capit, quae etsi non percutiat, certè sollicitat: Securius igitur est perire non posse, quàm juxta periculum non perijsse i Hieron. ep. 47. : Who did ever rest quietly, sleeping near to a Viper, which though she do not sting, yet she doth vex? It is therefore more secure to be able to avoid danger, than not to have perished, where there is hazard of perishing. The effects of peace concluded are diverse, for either weapons are laid aside, or the parties agree upon 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, than a concluding of peace; as Tacitus saith in the like case: Bellum magis desierat quàm pax caeperat k Tac. 4. annal. . And the like matter Cicero, in the like sort censureth: Summum otium sed senescentis magis civitatis quàm quiescentis l 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 m Hippoer. 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 n 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 o Isoc. in panegyr. . And excellent is that saying of Cicero: Pax est non in armis positis, at in abiecto omni armorum metu p Cic. 10. lib. epist. jam. epist. 6. . But to speak some what of the diversities of making peace, if this clause be 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 q Bal. 5. cons. 106. , whereby (as Romanus expoundeth it) the weaker part doth adhere to the mightier: non ut subditi fiunt, sed ut defendantur r Rom. cons. 417. . This adherence is less than 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 soldiers and armour: Wherefore I wonder at Alciat, when he saith, Faederati Latine loquentibus subditi sunt, non sotij s Alcia. 7. cons. 13. , aut adhaerentes. Neither is it any subjection, though they give somewhat in sign of superiority t Castal. de imp. q. 109. . Neither were the Carthaginians and Macedonian● subject to the Romans, though they did pay unto them a yearly tribute. But if a League be once contracted, it bindeth very strongly 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 u Strabo lib. 8. . And for the further proof of the straightness and strength of this public bond, this form of League was found engraven in an ancient stone: Batari fratres, & amici populi Romani uu Dio lib. 69. : So that Bodinus is not to be hearkened unto, who thinketh that by friendship or league contracted betwixt nations, no aid is due unless it be expressly mentioned x Bodi. lib. 5. de rep. c. vit. : for Baldus teacheth him otherwise, that there is one body of two cities or two common weals, by reason of friendship concluded: a Bal. cons. 29 but for the better understanding hereof it is to be noted that there be two kinds of society or public friendship: one which is termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, the other which is named 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. b Suid. Thucyd. 1. Rhod. 11. an. le. 6. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, is when the parties contracting league are by force of the league to have the same friends, and the same enemies, which manner 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: c l. 5. 7. ubi Bal. pro sor. Therefore he that covenanteth to defend a castle or farelet is not bound, if war be raised through his fault, to whom he made the covenant: d Alexand. 3. cons. 114. and Castrensis avoucheth, that this aught 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: e Deci. li. 59 de. reg. iur. & 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 f Alci. 3. consi 2. yet that must be thought to be only 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 departed from the league. And I think upon just occasion such a departure may be made: Faedus non violatur si ab eo disceditur ob rationem iustam g l. 14. 15 16. pro soc. : But this must not be for a light cause: for light▪ causes are always arising: and all contracts would be most weak, if for a small and worthless cause it should be broken or not regarded. But a prince may safely departed from the league if some part of the league be broken by the other party: h Cagnol. l. 41. Cod. de. trans. and leagues as all other contracts be individua i 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 cui promissio ista fit, & pactio foederis: rebus sic stantibus. Thus we have 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 law of God k Deut. 20. Ioseph. 5. antiquitat. Aug. iudic. q. 49. . And it was practised by the Grecians, Barbarians, and most of all by the Romans' l Aerod. lib. 5. Xenop. Ages. Diony. 2. Livi. 1. : Whereupon Cicero saith, Nullum bellum justum haberi videtur nisi nuntiatum, nisi indictum, nisi repetitis rebus m Cice. 1. de offi. n. c. 1. 23. q. 2. : Which saying is cited and avouched in the Canon law n c. 1. 23. q. 2. . And this is likewise affirmed in the civil law. o l. 24. de captain. And therefore it is held by the interpreters of the civil law, Proditoriè agit qui non indictum movet bellum: p jas. Bald. l. 5. de just. l. 4. c. de obs. p. And Varro reporteth, that just wars did cease to be waged in his time, because they ceased altogether to be lawfully denounced q Var. lib. 4. de ling. Lati. . For the ancient Romans did not affoarde a triumph to any, unless the war were solemnly proclaimed r Sigon. de anti. iur. pro vin. : And Alciat accounteth this the law of nations s 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 be used t 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 have enforced them, as the rule of the common law is to have 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 u 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: x Flor. lib. 2. So Livy reporteth of the Frenchmen; Erant qui extemplo Romam eundum censerent, sed vicere seniores ut legati prius mitterentur questum iniurias, postulatumque ut pro iure gentium violato Favij dederentur: a Livi. lib. 5. Wherefore Xerxes doth greatly inveigh against the Grecians because they did not first aslay to end their controversies without weapons: b Herodot. l. 7 and for the same cause joab is justly reproved in the scripture of the wise woman: c 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. d Ter. in Eunuch. Yea even Tullus a most warlike man is of this opinion: Quae verbis componi non possunt armis decernantur: e 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 cadavera: hic primus sermo: si nihil efficis, secundus, ut f) Eurip. in Sup. me armatum expectet. And so Theodorius said truly to Alaricus: Tunc ad arma cum locum apud adversarium justitia non potest invenire: And again, Quid opus homini lingua si causam manus agat armata. g Cassiod. 5. Var. 1. 7. Thus it is evident that by the law 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 breve et in presence tempus convenit, ne invicem se lacessant: h lib. 19 de captain. And Gellius maketh mention of a truce which was made for an hour only: i Gel. li. 1. c. 25. Vergill calleth truce pacem sequestran, because it sequestreth as it were, and suspendeth war for a time. Varro termeth it, Ferias belli, wars holiday. k Virgil. 11. Aenei. In that it is called sequestra pax, it is to be noted that it is not simply a peace. In the Cannon law it is called tregna: it is of this nature, that by it war is not ended but deferred only, 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 years with the Romans: afterward for forty years, and after for twenty: as the Tuscans had a truce first for thirty years 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 Tuscans: Pacem faedusquè petierunt, inducias in tringinta annos impetrarunt. l 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 m Plut. in Pelop. . Ancharanus doth thus distinguish them there is a time of war, a time of truce, a time of peace n Anch. cons. 88 . And an other Civilian avoucheth truce to be more like to war then to peace o Corn. 3. cons. 167. . And an other saith fitly, Induciae non interrumpunt hostilitatem, sed actus hostiles: p Aug. l. si un 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 Philip may seem to have done unjustly and against the law of arms, who having obtained q) Livi. lib. 31. 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 r Guicciar. li. 2 . And it is thought to be against the law of truce to receive soldiers at that time into a town besieged: s Com. Pij. 2. lib. 5. For it is an usual clause in the concluding of truce: Nil novari securitate pendente: t Vital. tract. clau. So Scanderbege doth sharply reprehend the Turks, who having promised to yield themselves if aid did not come within a certain number of days, do in the mean season repair the breaches of their walls and munition: u Scanderb. 8 Neither can Tissafernes be excused from the violation of truce, who in that time did make himself more strong for war. But Agesilaus is noted to have done the contrary: c Corn. Nep. Agesil. Neither can the act of Belisarius be 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 waived: but the Goths did not wave them; for they departed out of these towns through penury, & want of victuals cc Procop. l. 2. de bell. Goth. : Now by the civil law he that departeth out of a place, or casteth any thing away being enforced by necessity cannot be said to leave that thing behind him pro derelicto d l. 1. 7. pro derel. 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 e 16. Eliz. 138 Dy. . And to that which is waived and left by necessity f 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 have 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 be 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 salui, & salui 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 afford safeconduct for the better performance of his task h Decia. 3. ●onsi 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 departed, and he that hath licence to pass safely may send safely i 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 jews and infidels k 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 l) 8. 38. de pae. such, revolters or runagates are by the civil law burned alive, or else hanged upon a gibbet. Marcellus and Cato the Censorian did whip them and put them to death m 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 trodden & torn in pieces, others did with other extremity work their death n Livi. 24. 26 Val. Maxi. 2. c. 7. Front. 4. c. 1. Appi. in bell. Hispan. : neither do I think that safeconduct may extend to men of another nation, than 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 Turks 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 bene esse o Bal. 5. cons. 413. : And to such familie-seruauntes or retinue as to be agreeable and proportionable to his dignity and estate p Aug. l. 8. de in of. test. : for according to the rule of the civil Law, in personalissimis actibus inseparabiles personae includuntur q Bal. 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 borne 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 borne free: for the rule is true: Quae iure gentium acquiruntur, ea non acquiruntur nisi vera interuenerit apprehensio r l. 3. de acqui. po. ubi jas. , 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 meant 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 man's ear, is in the civil Law held to touch the whole man s 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 t l. 5. de captain. Alex: l. 1. de acquir. po. tt. 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 captivos abduceres, gladio tuo et arcu tuo eos percuteres? And though bloody Pyrrhus desirous to kill Polyxena did pretend, that lex nulla capt● parcit aut poenam impedit: yet Agamemnon answered him well, quod non vetat lex hoc vetat fieri pudor u Senec. in Tro. . To which purpose the other Seneca saith excellently: Augusta innocentia adlegem bonus esse, et latius officiorum patet quàm juris regula, multa exigit pietas, humanitas, liberalitas, justitia, 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 uu 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 than themselves were, and finding their captives to tend to conspiracy and mutiny, having singled the most noble, did kill the base prisoners x Com. Pi. 2. lib. 6. Polydor. 17. . But doubtless the Turk's cruelty was barbarous, who did kill four thousand prisoners, that they might not be a burden or charge unto him a jor. lib. 3. . And this fault was committed by Henry the second king of France b Nat. Com. 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's 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 have 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 upon the last will and military testament of a Roman, engraven in stone as Sigonius reporteth, who would have his villains manumitted by the Praetor c 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 villains. But in the making of them villains, chains doubtless were used: and therefore Vespasian when he had taken josephus prisoner, would needs have his gives to be broken, not to be loosed, that he might seem never to have been a bondslave d joseph. lib. 5. de bell. jud. . And whereas the Law saith, that such things as are taken of enemies capientium fiunt e 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 f 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 g Sen. 1. contr. 5. . And Plato writeth not well when he saith, that bondslavesl) l Plat. lib. 6. de leg. . are to be handled roughly. Aristotle more truly, that they ought to be handled mildly m Arist. 1. polit. . Cicero more iustilie, Meminerimus et adversus infimos justitiam esse seruandum, Macrobius more modestly, Dominum patremfamilias, servos familiares appellaverunt nostri maiores omnem servis contumeliam detrahentes n Macrob. 1. saturnal. 11. . Clemens Alexandrinus more compassionatelie: Famulis utendum tanqum nobis ipsis: sunt enim homines tanquam nos o Cle. Alex. ●lt. paed. . Nunquid canes saginabuntur, homines pascentur male? said Diogenes. In Athens there was a Law de iniuria seruili p Athenae. lib. 6. . Amongst the other Grecians there was a Law, that bondslaves might departed from their cruel masters. In some common weals they had licence to purchase lands, and goods, as Athenaeus q) Pollu. 7. Plat. de superst. reporteth, according to the Roman Law, as appeareth by Seneca, Dominus praestare debet servo cibarium, vestiarium: est enim servus perpetuus mercenarius r 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 Philip, and the son of Nabis to be led before his triumphal chariot, though they were but Hostages s Oros. lib. 4. c. 20. Livi. 34. . And the Parthians were wont to say: obsidaetus nihil aliud est, quàm servitus t joseph. lib. 18. antiqu. . By the Civil Law they can not make a testament no more than others, which are in the enemy's power u l. 1 1. 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 uu Bal. 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 a Plut. de cla. mu. , the Romans b Livi. 2. Diony. 6. , the Goths c Procop. lib. 1 de bell. Goth. ● , the Dacians d Bodin. 1. de rep. c. 10. , the English e Polyd. lib. 5. 7. 15. . 8 I may not omit to speak somewhat of the Law, and lawful use of Stratagems, which have been so much favoured and practised in ancient times, that it hath been generally and peremptorily affirmed: Nullo discrimine virtutis ac doli prosperi omnes laudari debent bellorum eventus c Ammian. Marc. lib. 17. . And S. Augustine his authority is urged in the Canon Law: Cum justum bellum susceperis, utrum aperta pugna, utrum insidijs vincas nihil ad justitiam interest d 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 only fight by warlike instruments, but by nimbleness of wit e 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 f 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 art 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 g 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 harness certain iron buttons: for this word (ferrum) was to be understood of weapons: as appeareth by that saying of Pyrrhus in Ennius: Ferro non auro vitam cernamus utrique. And h) Fronti. lib. 4. c. 7. they of Plataea were unjust, who having promised to restore certain prisoners, did first kill them, and then deliver them i 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 k Diod. lib. 17. Polyen. 4. . The Samnites were unjust, who having promised their enemies that they would take away but a stone all along the wall, did take away the foundation-stones & so destroyed the whole wall l Polyen. 6. . And that Roman can not be excused from blame, who when Antiochus had promised him that he should have half of his ships, caused all his Navy to be cut in the midst m 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 upon 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 mm Polyb. lib. 6. . For as Cicero, though a pagan saith divinely: Semper in fide quid senseris, non quid dixeris cogitandum n 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, upon some occasions. But what hath been done of the most part of the best men of all Nations, upon grounded advise, and free election. And surely divers such great & eminent parsonages have sometime used such stratagems in good sort, and without breach of national justice. judith that wise and valiant woman, for her plot intended and practised against Olofernes is commended of divers, yea even of Divines: of Clemens Alexandrinus o Clemens stromat. , of Ambrose p Amb. 3. de office , of jerom q Hieron. apo. Ru. , of Augustine r Aug. de te. 228. 229. , of other. So Augustus Cesar did promise to Cleopatra what she would, if she would effect the death of Antonius s 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 jugurtha, as Sallust avoucheth. They were compassed of the Aetolians against Nabis t Paus. lib. 8. . And attempted of Perseus against Eumenes u Livi. lib. 42. . And likewise of Decebalus the king of Dacia against trajan uu Zona. Dio. 68 . They were procured lately of Tiruultius against Sforza Duke of Milan a jovi. lib. 11. . And in time passed performed by Totilas against the Governor of Perusia b Procop. lib▪ 3. de bell. Goth. . And in this age of Selimus the Turkish Emperor, against king Aladolus c iovi. lib. 17. . And heretofore of a certain Triballian against Amurathes d 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 e 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 f 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 g Livi. 7. 22. Plut. in Luc. 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 h Panor. 2. cons. 62. Bald. lib. 3. de. off. praes. : And Alexander might well laugh at Darius, who in the articles of peace would have yielded these things to Alexander, which he did already possess i Curt. lib. 4. & 5. : And Hannibal did disdain the Roman simplicity (though they did it of great policy) in selling that ground which he did possess with his army k Livi. lib. 26. : And Brasidas the Lacedaemonian said well, that that was not the Boetians land, which the Lacedaemonian army had seized: l Thucyd. li. 4 And when a Monarch or free city yieldeth, all the members and inferior parts do yield implicative: wherefore Baldus saith well, A submission 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 iure imperatorio, as Cicero saith: m Cicer. Verr. 3. So Camillus a most strict observer of the law of arms did take the image of juno from Veios' n Livi. lib. 4. : Marcellus carried away many things from Siracuse, o Plut. in Marc. and Mummius conveyed great store of Church-ornaments out of Achaia p Zonar. : And Sir Francis Drake that sea-flowre of England did (as I have 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 be somewhat in scripture q 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 be sacked: cities yielded upon condition may not r Livi. lib. 37. : and cities surprised may be sold, and the walls may be destroyed, and the cities themselves s Plut. lib. 4. . The walls of Athens were destroyed by the Spartans t Thucyd. li. 1. . The walls of Sparta by the Achaeans u Livi. li. 38. : the walls of jerusalem by the commandment of Pompey x Tacit lib. 5 : part of the walls of Giscala by Titus a Ioseph. 4. ●elli. jud. : the walls of Argentina by Attila, which he would needs have afterward called Polyodopolis, as now having many ways to come unto it. b Bon. sin. 1. ung. 2 Frederick was brought in triumph through the walls of Milan yielded unto him c Sigon. lib. 13. de re. It. : Alponsus through the walls of Naples: (as Guicciardine reporteth) julius 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 upon, he thought good for that present to trample upon stone 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 e Diod. li. 15. . Livy maketh mention of Alba, Pometia, Corbio, Cortuosa, Contenebra, Satricum, Antipatria, Phaleria, and others, which were so destroyed f Livy. l. 1. 2. 3. 6. 7. 24. 31. 32. : Carthage, had the same fortune, which is said to have suffered the plough, a ceremony used of the Romans in razing of the foundations of a city conquered g l. 21. qui▪ more. us. am. : the same fortune had jerusalem h c. 7. dist 76. 1. Mich. 3. , according to the prophesy of Micheas: Zion ut 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 have agreed. COrporations in the whole course and constitution of them do very much resemble the natural body of man: for as there be in it great diversity of parts, so is there likewise great distinction in cities and corporations, of mysteries & degrees. In Egypt there were in their several corporations divers sorts and callings of people; Kings, Priests, Warriors, and Workmen: which last kind was subdivided into four members, Shipmen, Artificers, Husbandmen, and Shepherds, a 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 unbodilie, 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, Latino's, Sabinosque miscuerit, & unum ex omnibus sanguinem ducat, corpus fecit ex membris, et ex omnibus unus est b Florus. l. 3. c. 18. . Hear the opinion of the Stoics, comparing the world to a corporation. Civitas totius mundi una est, & omnes homines populares, municipesquè & veluti armentum unum compascuo in agro compascens c Cice. li. 3. de fi. Plut. de vi. Alex. : Hear also Seneca. Homo homini in maiore civitate civis est, & in adiutorium mutum creatus d 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 write but excellently) Augustus Caesar sapientia sua atque solertia perculsum undique et perturbatum ordinavit imperij corpus. Quod it a nunquam haud dubtè coire & consentire potuisset, nisi unius praesidis nutu quasi anima, & mente regeretur. e Florus. lib. 4. c. 3. And Seneca saith wittily: Societas haec nostra lapidum fornicationi simillima, casurae nisi invicem obstarent & sustinerent se lapides; f Sene. epist. 96. This our society is like unto an arch of stones, which would soon fall if one stone did not hinder and bear up another. S. Ambrose divinly: Lex naturae ad omnem nos stringit charitatem, ut 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 g Cice. lib. 7 ad Attic. ep. 2. . And both he and S. jerom h 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 sake that part of justice, whilst they follow the other: from which fault all the Rhetoric in the world cannot exempt the cloistered Monks and couchant Friars of the Romish liturgy: Claudian speaketh aptly of this matter i Claudi. 4. cons. honour. : Nun vides operum quî 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, ut praevalida corpora ab externis causis tuta videntur: sed suis ipsa viribus onerantur k Livi. li 30 . And again, Discordia ordinum est venenum urbis huius l 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 dieth not as it is showed 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 Sheriffs may die, and be changed, but so can not the commonalty m 21. E. 4. 7. 12 27. 67. Mai. 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 urbem auspicat● Dijs authoribus in aeternum conditam, fragili huic & mortali corpori aequalem esse: Flaminio, Paulo, Graccho, Posthumio Albino, M. Marcello, T. Quinctio. C. Fulvio, Scipionibus meis, tot, tam praeclaris imperatoribus uno bello absumptis, superstes est populus Romanus eritque mill alijs nunc ferro, nunc morbo morientibus n Lui. li. 28. . And Tacitus speaketh of this matter pithily though shortly: Principes mortales, aeternae resp. o 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 man's natural body, doth restrain his body, but if one do imprison the Sheriffs 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, ut plerosque populos eódem die hosts, dein cives habuerit: and he showeth it more particularly, Neque ignoro julios 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 potiùs quàm separati habeant: condemning the Lacedæmonians & Athenians, who used it not. Quid aliud exitio Lacedaemoniis et Atheniensibus fuit quam quam armis pollerent, nisi qd victos ꝓ alienigenis arcebant p 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 Alps, and the sea. Claudius' Caesar bestowed the freedom of the city upon many barbarous nations: and under these Emperors 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 only were noted for barbarous who lived not under the Roman Empire: q Herodian. Sparti. Eutrop. wherefore Rhenus was said to have 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 & giving voice at the election of Magistrates and Officers only excepted and foreprised) it is more plainly and understandinglie opened by Livy in these words: jam indemorem Romanis colendi socios, ex quibus alios in civitatem atque aequum ius accepissent, alios in ea fortuna haberent, ut sotij este quàm cives mallent r 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 upon a Frenchman, though earnestly requested by his Empress Livia, whom he dearly loved, disallowing the act of C. Caesar his adoptive father, who enfranchised a whole legion of his French soldiers, and reproved likewise M. Antonius for selling the liberties of the city unto the Sicilians for money s Tranquil. in vit. August. . Yet his posterity was not so precise, but did abundantly admit strangers: For Antonius pius did enfraunchise all that were subject to the city of Rome, that Rome might be the common country of all Nations t L. in orb de statu ho. ff. , imitating perhaps Alexander magnus, who accounted the whole world a common City, and his pavilion l) Rom. ad municip. ff. the tower of the city m Plut. in Alex. . And Severus did grant to the citizens of Alexandria, that they might be Senators of Rome, and that other Egyptians should not be 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 upon Lewis the eleventh, and other kings of France o 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 p Plut. in pelopis. . So the Athenians did make free of their city Euagoras king of Cyprus, Dionysius the tyrant of Sicily, Antigonus and Demetrius the kings of Asia, yea even all the Rhodians q Livius : which the Rhodians requited with like courtesy, which was nothing else but a comburgeosie, such as Bodinus r Bodin. ubi supr. reporteth to have been made betwixt them of Valois, and certain towneships of the Helvetians: Betwixt the men of Berne, and them of Friburge: Betwixt them of Geneva, & them of Berne. 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 have been contracted betwixt the Citizens of Lincoln, and them of the town of Derbie, that they of Lincoln should be quite from murage, pontage, custom, and tolle, within the village of Derbie, for all kind of merchandise s 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 t 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 Solon's meaning, being a man of deeper reach than 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 lose 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 borne in the city of Rome, was a citizen of Rome, and more than 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 Emperors do refer their original to him, u Senec. in epist. ad Lucil. ) yet this man could not be made a citizen of Athens, lest (as Cornelius Nepos reporteth the plain truth u Senec. in epist. ad Lucil. ) he should lose his freedom of the city of Rome. But as to them which were honorarij cives, if they were enfranchised of a w) Cornel. Nep. in vit. Attic. hundred cities, yet they could not lose 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 Gray Inn, to which be admitted such a number of excellent noble men, great divines, surpassing gentlemen, whereof some have sued and been desirous to be admitted: other some have rather been called, then ordinarily consorted, for their pre-eminence and worth, according to the rule of Solomon: 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 have accorded, yet in the special manner of admittance they have dissented and varied: For in Athens they could not bestow their franchise upon any without the suffrage and voice of a thousand citizens at the least a 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 originary inhabitants, but even strangers and aliens are forbidden by the Rulers of the places to departed out of them: As namely in Moscovia b Sigis. in hist. Moscho. , Tartary, and Aethiopia c 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 have 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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, which is to be interpreted a well, or pit: for in drinking at one pit or well society was at the first contracted: thence is derived 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fraternity. So likewise Pagi, towneships, are derived of the Doric word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, which signifieth a fountain, and in the Atticall dialect is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. 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 uncles and nephews, than grew affinity: All which would have 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 highness may depute 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 d 2. H. 7. 13. . But 22. Edwardi 4. and 20. Hen. 7. the opinion of Read is to the contrary e 22. E. 4. Grants 30. 20. H. 7. 7. , and both Mast. Fitzherbert, and Mast. Brook g Br. Patents 44. abridging the case, are in this contrary to Mast. Keble: f) Fitzherb. Grants 36. 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 h 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 than 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 days celebrated to preserve love, and friendship amongst the people, that they might with more joy and comfort proceed in their private and public affairs i Plut. in Num. Dionys. Halicar. lib. 2. : And this he seemeth to have done by Solon's 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 k 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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, 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 l 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, tranquillity, 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 jews, that religion toward God, and friendship amongst men might be maintained m Numer. 1. Levit. 23. . But as to the making of private Laws by such guilds and fraternities, Solon's 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 fiaternities, 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 justices of peace, or the chief governors of the village, and before them entered of record etc. But when I speak of colleges, companies, meetings, feastings, and assemblies, I do with the main force of my heart exclude unlawful societies, conventicles, and secret meetings of malcontents, fantastical, and private humoured 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 Prince's permission, who for some special causes foreseen may stop and hinder such donations: And therefore wisely by divers Statutes in this Realm is remedy provided against this, and a writ of Ad quod damnum devised n Statut. de Religios. 18. E. 3. pro clero. cap. 3. 15. R. 2. cap. 5. . Antonius the Emperor did first of all permit legacies and donations to be made to colleges and companies, excepting the colleges of the jews, whom notwithstanding he suffered to meet together, and to have their synagogues for religious use o L. 1. de jud. C. . Alexander magnus did bestow upon his city Alexandria, built at the seavenfolde mouth of Nilus, many great privileges, franchises, and immunities p joseph. lib. 3. bell. jud. . 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 q Bodin. lib. 1. de republs. c. 6. . And so diverse of our kings of England have bestowed many liberties franchises and benefits upon several cities, which M. Camden hath very profitably & very learnedly amongst other things in their due places set down, whom I need not further commend to my countrymen 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 have not only had their courts, folkemote, and the like, but even common counsels (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 than the taking away of such Counsels: 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 Counsels, and public meetings: so they did when they had overcome the Achaeans: Memmius the Consul (saith Livy) did dissolve all the common counsels of the particular nations of Achaia, and of the Phocensians and Baeotians, and the other parts of Greece r Livi. lib. 35 : But when these regions and provinces were sufficiently quieted and sound knit to the body of the Roman Empire: then (as Strabo reporteth) their ancient Counsels 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 belli, qui libertate a Romanis data adversus ipsos usus est s Flor. lib. 2. : Neither were the liberties of the Aetolians impeached until they revolted to Antiochus, as justin showeth: Offensi Aetóli, quód non ex arbitrio eorum Macedonia quoque adempta Philippo, & data sibi in praemium belli esset, Antiochum in Romana bella impellunt t 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 only of one of the heathens, 1) Varro. 2) Cicero. and but of one in eloquence well avoucheth: Nulla est civitas quae non et improbos cives aliquando, u) Livi. lib. 45. & imperitam multitudinem semper habeat: but as they did favour lawful and convenient counsels, 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 secret as consultationes esse sinas x Livi. lib. 34. : And this aught 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 prava religione, ubi deorum numen praetenditur sceleribus, subit animum timor y 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 send corrupt humours, which overladen 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 be 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 have subverted them, but their companies were quickly dispersed, and the greatest part of these companions was destroyed by fire and sword a Polyb. li. 3. : Now to speak somewhat of the liberties of a city. S. Paul when he was by the commandment of the magistrates apprehended, being accused that he troubled the public tranquillity by seditious assemblies, professing himself to be a citizen of Rome he appealed to Caesar b Act. 25. v. 11 though he were by nation a Cilician, by blood an Israelite, by tribe a Beniaminite, yet because his father c) Acto. 22. v. 28. had been a citizen of Rome: the liberties were afforded unto him: he likewise, when he was commanded to be scourged pleaded for himself that he was a Roman d ibid. v. 25. . But because the abundance of liberties of all the cities of Asia, Africa and Europa, are sufficiently known, I will not stay any longer upon this point, but will pass to matters of greater importance, and more difficulty. The ninth Chapter. That the distinguishing of demesnes, & the difference of the degrees & callings of men, is according to the law of nations. COnfusion breedeth 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 Emperor 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 parts: and his other son Honorius, to whom he allotted Room, and all the occidental countries: and so Darius would have made a partition with Alexander of the whole world, that the one of them should have 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 partitjoin was unused and unknown, as may appear by these authorities first of Virgil, who saith: Ne signare quidem aut partiri limit campum Fas erat. a Virgi. Georg. 1. And of Tibullus: non fixus in agris Qui regeret certis finibus arua lapis b Tibul. 1. Elegi. 3. . And that of Seneca: Nullus in campo sacer Divisit agros arbiter populis lapis c Senec. in Hippoli. act. 2. . yet the case was altered when Ovid writ thus: Gentibus est alijs tellus data limit certo: Romanae spatium est urbis & orbis idem d ovid. 2. Fasto. . And upon good reason was it altered, for as Boetius saith well: Dimensiones terrarum, terminis positis wag antibus, ac discordantibus populis pacis utilia praestiterunt e Boeti. in geomet. : And the great use of limits and boundaries Plutarch showeth, 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 f 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 upon the top of the Tarpeian hill unto Terminus, and this idol was made of stone g Plut. in Num. : He was set in a chapel as not fit to be removed: he was made of stone as hard to be removed: he was placed upon a high rock as not possible to be 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 justice: Wherefore Solomon saith: that which also is commanded in Deuteronomie: Thou shalt not remove the ancient bounds which thy fathers have made h 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 fivefold: 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 i 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 be marveled at, for nature herself hath taught the nations her scholars 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 upon the rivers, ye shall observe Euphrates in his form and compass of his stream to be more excellent than Ganges: Ganges better than Danubius, Danubius' better than Tagus, Tagus then Padus, Padus then Tempse, Tempse then Severne: Note the fishes of the sea: yea shall find these to have place above the rest the Whale, the Dolphin, the Sturgeon, the Salmon, and the Conger. Cast an eye upon the beasts of the field, the Lions, the pards, the Elephants, and Panthers do excel: look into the bowels & matrice of the earth, ye shall have 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 smaragd, 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 aewm, 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 jews, they only were accounted noble, which descended from the stock of Aaron, or the kings of Israel and juda. 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 a Sallust. in jugurth. . And an other Roman saith, Genus qui laudat suum aliena laudat b Senec. . And an other namely Ovid: Nam genus et proavos & quae non fecimus ipsi vix ea nostra * ovid. Metamorph. lib. 13. voco, which golden saying so much pleased that worthy and noble knight Sir Philip Sidney, Learnings' champion, England's miracle, Europe's 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: And I know not whether Ovid his invention, * ovid. 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 statue praeter nomen nihil est additamenti: for what difference was there betwixt Cicero's statue, and Cicero's 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 armory, Crests and Cognisances to men of special note: Which our ancestors (saith Pliny) the representations of their dead fathers were proposed to view, their countenances were resembled and engrailed in their armory, 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 c 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 d Livi. lib. 1. . By the customs of Perusia and Florence every one that followeth the standard, and is initiated & entered into military profession doth presently of a yeoman become a gentleman e Bartol. in lib. 1. de dig●it. ci●. . 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 f Bodin. lib. 3. de repub. c. 8. . But the Venetians do measure gentry and nobility by senatory state: yet I take it to be after the manner 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 only a soldier, having spent his very Consulships, even six Consulships in wars, and the seventh should not have 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 convey then counsel, did more hurt then profit the Roman common weal. So did julius Caesar: so did M. Antonius, though these later were somewhat more than mere soldiers. But amongst the Egyptians none could be soldiers, but the Calasyri, and many years 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 madein the Senate house, who boasted that he had served in war forty years for his country, that he had fought in an hundred and twenty battles, that he had received forty and five wounds, and twelve of them in one day, and all of them adverso corpore encountering the enemy face to face, that he had purchased fourteen cibicall crowns, three obsidionall, fourscore and three golden chains, a hundred and threescore golden bracelets, ten goodly spears, five and twenty fair and costly arming saddles g 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 h Sallust. in bell. jugurth. loq. de Mar. . Augustus Caesar a notable wise Emperor did supply the want of Senators with rich men i Tranquil. in August. , though not very wise, because he perceived that the notable order of Senators, which stood much upon cost and expense, (whereupon I am persuaded these words issued from him, Duas habeo superbas filias, juliam et Rempub. k 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 l 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 credit. 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 m Xenoph. in oecumen. . Aristotle likewise writeth, that amongst the Thebans it was a Law, that no man could be admitted to place of honour, unless he had left off merchandise by the space of ten years before n 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 o 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 stone, and the like workmen, are wholly to be debarred from honourable or judicial places p Ecclesi. c. 38. . And by the imperial Laws, Merchants may not be advanced to any honourable estate p L. ne quis de dignit. C. L. si cohortat. de cohort. L. humil. de incest. C. : neither might they have any regiment of soldiers q L. 1. negotiator. ne milit. C. . And Plato r In lib. de legi. , Aristotle s Lib. 7. polit. c. 9 and Apollonius t Philostrat. , do hold merchandizing to be an enemy to virtue. Neither will Cicero's 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 u Cicer. lib. 1. office : For though his commendation of merchandizing be 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 a Cicer. 3. de repub. , who told him in plain terms, That because he did rob on the Sea with one small pinnace, he was accounted a pirate: but because Alexander did the same with many great Galleys, therefore he was termed the governor of a fleet: For as Lucan saith well: Facinus quos inquinat aequat. And the same Lucan calleth Alexander b Luca. lib. 10 , Foelicem predonem, a fortunate Robber: And this answer of the pirate to Alexander is liked of Ciceto himself c Cicer. 3. de rep. , of S. Augustine d D. August. lib. 4. de civitat. dei. , and Alciat e Alci. 1. consi. 1. . Likewise it hath been a question sometime sifted, whether he that useth husbandry may properly, and in strict reason be accounted a Gentleman. In the common Law we have this rule, that where a Gentleman is sued by the name of Husbandman, he may say, that he is a gentleman, and demand judgement 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 f 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 g 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 h Valer. Max. Varro. Cicer. Livi. Florus. . In jewrie and Egypt how much it hath been esteemed may appear by this, that neither could Phara● pleasure jacob more to his contentment: Neither could joseph procure a greater pleasure unto him, than 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, etc. Husbandry hath been greatly practised, and in other Nations not so much addicted to husbandry, exceedingly praised. Divines have in all ages & countries possessed the reputation, either of gentlemen, or of reverend, right reverend worshipful, and right worshipful men, and that upon good reason, which by and by, (God giving leave) I will demonstrate. Whether Physicians 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 years i L. Thais § Lucius de fidei commiss. : yet about the imperial time it was received into the city k L. quidem C. de decuri. , and highly esteemed. But the Hebrews 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 Surgeons, Empirics, 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 centre of common weals, and the science of government, as I have at large showed in the first Chapter of my direction to the study of the Law: And this even Philosophers have adjudged l Plat. in Gorg. Aristo. lib. 1. polit. c. vlt. . But now whether mere Grammarians and Rhetoricians, I mean sole & single professors of these Arts 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 iussi m 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 boys their Alphabet, or first letters were so rewarded n l. 6. de exe. tut. l. vlt. in fi. de mu. et ho. l. 2. p. vlt. de vac. mu. : Vaspatian granted and allowed to Rhetoricians great franchises, and privileges, o Dio. Cassi. in Vespa. Gelli. lib. 1. c. 11. which made Rhetoric to flourish in that common weal in these times: p Tacit. lib. 11 an●al. For as Tacitus saith well, Sublatis studiorum pretijs, etiam studia peritura, ut minus decora: and before him Plato affirmed it: Artes illuc confluunt, ubi ipsarum pretium est q Plato in mayor. 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 honour of embassage, and such have been in all ages well esteemed, unless it were that they have miscarried at the hands of some covetous churls, and pennie-fathers', or vainglorious pictures of mankind, which as they measure a man's strength by his stature, so they way his inward ability by the outward apparel of his body, whose childish humour Iwenall gibingly toucheth. didicit iam dives avarus Tantùm admirari, tantùm laudare disertos pueri junonis avem. This is to esteem a book by the cover, a horse by the his trappings 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 tailor's needle, than the university learning, aurcas pecudes. Having particularly and severally spoken, and as it were by way of anatomy, of the divers callings, estates, and degrees of men, it is good to marshal the callings and degrees in order as well as I can conceive them. In the first place must be 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 josephus 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: therefore 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 shallbe alike s Esa. 24. Ose. 4. ; and they which in ancient time did inhabit the Cellicke or Northwest 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 t Caes. lib. 6. de bell. ciu. Plut. in Anton. : So the Turks and Arabians have 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, viscounts, Barons, etc. The tenth Chapter. That in the law of tributes, subsidies, and prerogatives royal, all Nations have consented. AS it behoveth every Monarch to have a watchful care of his subjects good, and to bend the force of his mind to the preservation and maintenance of their safety and good estate: so subjects should not grudge to pay unto them tributes & subsidies, and other public impositions, that all necessary charges may be substantially defrayed, all convenient designs produced into act, and solemnly exploited. Prince's therefore must have great care of the furnishing of their treasury; for who is ignorant that money is the strength and sinew of a state, howsoever Machiavelli a 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 have deserved well are rewarded, the public and necessary business of the commonweal is dispatched, and therefore that country proverb * Pecunia sine peculio fragili●. may very well be admitted into the prince's ear, Money without stock is frail and brittle: And if war be to be undertaken or maintained, how can this be done without money, sithence soldiers are never kept in order without salary, and reward paid and distributed unto them. Consilium principum fuit (saith Pollio) ut milites, quo solent placari genere, sedarentur: promissis itaque per Martianum aureis vicenis, & acceptis &c. b 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 Philip late king of Spain, that he effected more by his Indian gold, than his Spanish iron. Therefore Horace saith: Aurum per medios ire satellites Et perrumpere amat saxa, potentius Ictu fulmineo c Horat. 3. Carmi. od. 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 be applied to a prince or Monarch: — foelix Tempore qui pacis bella futura timet. And how can provision be made for an army without money, & how can an army fight without provision: for as Cassiodorus saith: Disciplinam non potest seruareieiunus exercitus, dum quod deest 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 paid by the subjects 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 d Tacit. lib. 5. annal. : The Romans did maintain their wars by tribute; for after Pompey's victory which he had against Mithridates, they had out of Asia maior six millions and a half, out of the lesser Asia only two millions, which none will marvel at, that knoweth Asia to be 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 e Cicer. pro leg. Manil. . And all France did not yield the third part of that tribute unto the Romans, which some part of France did afterward pay unto their kings, as Alciat hath observed f Alci. l. 27. de V S. : neither am I of the mind of Philip Commineus, who denieth generally that princes may command tributes ff 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 g Tacit. 4. histor. : And justinian doth command that tributes may be imposed upon the Zany being conquered ut victos se agnoscerent: and the jews 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 h Flor. lib. 3. histor. :) yet craftily after their manner, because they would have Christ to have 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 i Mat. 22. : for in deed tributes are allowed by the law of God k Deut. 20. : & therefore Cicero saith excellently, that tribute is victoriae praemium, poena belli l Cicer. in verr. 5. : And Orosius almost as excellently, that it is vinculum pacis, monumentum belli m 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 since the universal conquest of William, who first commanded and imposed tribute upon this land (for conquerors may command) tribute and subsidy have been as justly both by the law of God, and the law of nations, paid in England as in jewrie, 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 captivitatis: Lands charged with tribute, poles with tax, are signs of conquest n Tertull. i● Apolog. . Bodinus in my mind giveth good counsel to princes to set a great impost upon such things as corrupt the manners of their subjects, as namely upon these compounded perfumes, these paintings of the face, these Margarites, these Marchpanes, Wines, o 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 possit, proving it out of the fifth book of Plato because such is the nature of men, that these things quae sanctissime vetantur, avidiùs expetant; By this reason there could be no fault, nor default forbidden: as for Bodinus I excuse him thus: Nullum fuit magnum ingenium sine mixtura dementiae, which Seneca observeth oo Senec. in fin. lib. de ira. : And as to Plato's 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 & unclean fables: & of Athenaeus he is more sharply noted to be invidissimus, rabiosé male dicentissimus, mendacissimus, improbissimus, ridicule ambitiosissimus: p 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, q Plut. in Cat. whose death at Utica gave him his dismal name, and Solon's 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 have 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 be, and what is it that hath been done, that which shall be done: And there is no new thing under the sun, r Eccleast. c. 1. and that that shallbe hath now been rr Eccles. c. 3. . But to come to my purpose again, and to another prerogative of princes. Prince's 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 s 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 t Livi. li. 3. , that when he had overcome the French nation beyond the Alps, he brought in a hundred threescore and ten thousand pound of silver, and of brass three hundred twenty thousand: and of Flaminius u Livi. lib. 34. that he brought out of Greece eighteen thousand pound of silver in bullion, and two hundred and seventy 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 crowns, which the cities bestowed on him. And Paulus Aemilius uu Livi. lib. 45. that precedent 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 x Livi. lib. 27. brought in fourscore and three thousand pound of gold, beside great quantity of silver. And Scipio commonly called Asiaticus y Livi. lib. 36. 38. 39 did bring in after his victory had against Antiochus, two hundred thirty and three pounds in golden crowns, 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 a Flor. lib. 3. : that which Pompeie b Lucan. lib. 3. brought from the Eastern & Southern wars? 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 upon my whole army (said he) they which before had nothing but coats of steel, do now lie in silver beds c Curti. lib. 8. . And much did Hannibal enrich the Carthaginian treasury, when after his victory at Cannae he sent into the Senate of Carthage d Livi. lib. 23. , three strike of golden rings, and so compassed them by measure, though by number he could not e D. Augusti. lib. 3. de civit. dei c. 19 . And in the holy Scripture it is reported of king Solomon: 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 upon his subjects, and tributaries, and the custom which he had of merchants, together with the tribute of the Kings of Arabia, and the Lieutenants and Governors of nations any way subject or subordinate unto him f 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 g Cicer. in oration. pro leg. Manil. . The Turkish Emperor taketh the tenth part of the value of the things that are to be carried out of strangers, and the twentieth part of his subjects h 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 subjects i 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 k 11. H. 7. ca 14. . It is good for every Prince to have 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 Solon's time merchandizing was held in great price, and he giveth this reason for it, because by that mean divers foreign commodities were brought in, friendship was procured with strange kings, experience in many things was attained l 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 m 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 wares, which divers of our Statutes of England have 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 have good regard: for Plato's admonition is to be followed, when he saith, Peregrinorum commercia respub. ne aversetur n Plat. 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 wares o 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 have situate near to the sea p 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 q Plut. in Pericl. . This therefore must needs be a good mean to increase the riches of a kingdom. But it is the Prince's prerogative to permit and to forbid merchant strangers at their pleasure and discretion: and therefore 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 etc. r Magn. char. cap. 28. . otherwise some Merchants may sow bad seed, even the seed of seducement of the Prince's liege's, shrouding themselves under the curtain of exposing wares 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 have showed 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 have been very well husbanded for the managing of their ordinary affairs, otherwise it would never have stretched to the defrayment of their charges. Their forces did consist of two hundred thousand footmen, of forty thousand horsemen, three thousand warlike chariots, two thousand ships, a thousand five hundredth pinnasses, fourescoore galleys, double furniture of armoury, and three hundred Elephants, and in their ships were a hundred thousand soldiers, and mariners rr 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 s Cicer. parad. 6. . In consideration of which great and extreme charges, the subjects of all Nations have given and yielded to their princes, divers 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 t Dionys. Halycar. lib. 2. . And these salt Mines were brought into better form, and were made more commodious for the common weal under the reign of Ancus u Livi. lib. 1. . And Aurelius victor doth note, that at the self same time an impost was made, and ordained for the same uu 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 a 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 Troyans', the ancient progenitors of the Romans b Livi. lib. 45. . And the Publicans had Salt in farm, as may appear by Cicero's report, and other authorities c Cicer. pro le. Ma. l. sed 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 Cattis, together with that of Perusia under Paulus the third, and that of France under Francis the first, and divers others dangerous quarrels have been about pretenced titles to Salt d 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 e Plut. in symp. 5. q. 8. . But what shall we say now of the other entrails of the earth: as Pitch, Chalk, lime, quarry stone, 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, Since 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 e Matt. 22. ver. 20. , what shall he then do with it? shall he make plate of it: by this mean a subject shall have plate, & the king none, which is not convenient: Therefore I take the judgement given in the case betwixt the Q. Majesty & the Earl of Northumberland, touching the title of these royal Mines to be sound and grounded upon 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 entirely: or which have brass or copper in them, and have some veins of gold intermixed, both these belong to the Prince: for the gold as magis dignum attrabit ad se minùs dignum: But such as have in them merely brass, iron, copper, or lead, may belong unto a subject by special title f 10. Eliz. Come 310: Informac. pur Mines. , notwithstanding Dio a wise & judicial writer maketh all Mines of metal in general public, as belonging to the Prince or common weal g Dio lib. 52. . And mines of Pitch Cicero alotteth to the Prince by the like censure h 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 armour, and there is a rule in the Civil Law, De armis publice asseruandis i Nou. 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 have in all ages and common weals been compaignions' of the aforesaid Metals, and have been used with them, and passed with them as the shadow with the body. Yet if a Prince have transmitted his title or right unto the base Mines to any of his subjects, 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 k Suetoni. in Tiber. c. 49. . And Laurentius Medici's hath been touched likewise for the same fault l 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 clearly 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 stone, 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 pecuntosis, stored with money m D. Augstin. lib. 4. de civit. dei. c. 21. . Wherefore Iwenall by his leave was deceived, when he writ: — etsi funesta pecunia templo, Nondum habitas, nullas nummorum ereximus arras n Iwen. Satyr. 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 o 22. Assis. pl. 99 : and it is a currant rule in all nations, In ambiguis casibus semper praesumitur pro rege. Adrianus Caesar made a law as Spartianus reporteth, that if any man had found treasure in his own ground himself should have it: if in an other man's 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 p l. 3. §. Nerati. D. de acqui. possess. : and it is a firm conclusion in the common law: Quòd the saurus competit domino regi, & non domino libertatis, nisi sit per verba specialia q Fitzh. Coro. 281. 436. . The eleventh Chapter. That all Nations have both secretly and by the course of their overt actions, acknowledged and yielded to the truth of the laws and commandments 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 be observed and kept, yet wanted grace to refer them unto God, who ought to be 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 sound 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 suit 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 straightly commanded by God and severely enjoined by Emperors a Exod. 20. v. 12. Deut. 5. v. 16. Acto. 4. 19 Pompon. l. 2. ff. de just. et iur. pius 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 b 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 shallbe never be possessed of the like ornament c Plat. 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 d Deuter. 21. v 18. , & his judgement is thus set down: If any man have begotten a stubborn and froward child which will not obey his father & mother, & being corrected continueth still in disobedience, let them bring him to the elders of the city, and to the judgement 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, than the people shall stone him, and he shall die: that the evil may be taken from the midst of you: Yea even they which had only cursed their parents were adjudged to death: 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 Pompey's law it was provided, that if the sea be 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 Hannibal's war e 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 adjudged guilty of slaughter, of impiety, of sacrilege f Pl. lib. 11. de legi. . But what shall we say of Orestes, who did slay his mother because she did slay his father: though there be divers opinions which do acquit Orestes, as namely the opinions of Cicero g Cicer. in Milon. , Paterculus h Paterc. lib. 1. , and Quintilian i Quintil. lib. 5. c. 11. : yet against them are Socrates k Plat. in 2. Alcibiad. , Diodorus l Diodor. l. 5. , & Aristotle m Aristot. l. 2. Rhetoric. c. 5. , but why should we depend upon the judgement of man in this case, when it is manifest that the judgement of God was in the highest degree, if we respect the pains of this life only, executed upon 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 be stoned, and that his flesh should not be eaten n Exod. 21. v. 28. and by the civil law if a man be bitten of an other man's dog, the owner of the dog is chargeable unto him that is hurt, because he did not tie up his dog or mussel him o l. 1. §. sed etsi canis, ff. si quadrup. pauper fecer. : therefore Solon devised a pretty punishment of such wrongs, namely that the dog who had by biting hurt any man should have 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 p 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 q Sophocl. : a lamentable sight no doubt, but done to this purpose, that they which had slain the men might by these foreign princes have expiation of their fault, which expiation was fully as bad or rather worse than the murder; for the princes who were to expiate them, did by enchantments invocate and make suit to the wicked spirits, that they may absolve them from the fault which is done by sprinkling them seven times with water, the predecessor of the Pope's holiwater, and to this feat seven garments were therewith sprinkled, than they kill a swine, a fit sacrifice for the devil: then they call upon jupiter Hospital, praying him that he would not vex with fury the party that had offended: thus the absolution is worse than the offence, and like to that of the merry Monk: Absoluo te ab omnibus benefact is tuis, & peiorem te relinquo quàm accepi r Erasm. in colloqu. . Then there are boughs spread along the houses, that the devil 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 Antenor's son, whom he loved, he fled to Menelaus (a great judgement of God) his very enemy for expiation, like to that judgement of the almighty executed upon Cosby an Irishman, who when he had slain the towardly Captain the Lord Burgh, sought by-paths, and had thought to have 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 s Senec. lib. de it. : In Egypt and Babylon he which had slain a man did penance by doing pilgrimage on the mountains, and then sacrificing upon the tomb of the dead, and so being cleansed of the Gymnosophists. 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 firebrands, and then sprinkled him with water, the pattern of the Pope's purgatory t Sard. Ferrar. de mor. gent. : The jews did usually kill such by sword or by rope u Card. Sigogoni. in lib. de rep. Hebr. : according to the commandment of God. Qui effuderit sanguinem hominis in homine, sanguis eius effundetur, quia ad imaginem Dei fecit hominem x Genes 9 v. 6. Matt. 26. v. 52. . How murder hath been punished by the civil law, the canon law, and the common law of this realm, I have showed I hope sufficiently in my Parallel of the laws, so that I shall not need here to roll the same stone. After the hurt of a man's own body, nothing can happen to him worse than the abusing of the body of his wife: for (as Solomon saith) jealousy is the rage of a man, therefore he will not spare in the day of vengeance a 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 b Num. 25. v. 9 : For the uncleanness of the Gabeonites with the Levites wife, the whole tribe of Benjamin was destroyed c jud. 20. : By the law of Moses if any had committed adultery with another man's wife, the adulterer, and the adulteress were both condemned to death d Levit. 20. v. 10. : & so was adultery punished by the Roman law called the law julia howsoever it slept in Iwenall his time, one that had been wanton himself: Vbi nunc lex julia? dormis? yet after this law was recalled by the Emperor Alex: e l. Castil. C. ad l. jul. de adulter. therefore Constantine did punish sacrilegious destroyers of marriage by the sword f l. quamuis. c. eo. : therefore the Pope's 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, be measured by the law of God, and it will appear to be abomination by the law of nations and desolation by the law of God, which all nations own unto him. God hath said. Non erit meretrix in Israel, nec scortator g Deut. 23. v. 17. . By the imperial law it is forbidden, that no bawdry should be exercised, or any stews suffered in any place through the whole Roman Empire h Novel. Const. 14. : Lactantius writeth i Lact. lib. 6. c. 23. that the devil consecrateth stews (as the Pope doth jesuits and seminaries 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 byword. The woman is the fire, the man is the roast-meat, in cometh the devil, and he playeth the cook. k Flor. giardin. de recreate. In Germany they use to cut off the hear of an adulteress, and the husband whippeth her out of his house through the street l Far. lib. de mor. gent. : and I have 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 have a bell rung before them, which was a custom used amongst the Romans, as Perseus showeth, 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 have used? Mahomet's 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. Solon's punishment likewise was too light, yea, and against reason, who imposed upon him that ravished a maid, the mulct of ten groats, upon him that alured a maid to naughtiness twenty. But in Athens afterward the ravishour was punished with death, if the ravished party would not marry him m Far. lib. de mor. gent. . In the prohibition of theft, all Nations have 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 thieves. n Vlp. lib. 1. ff. de abig. They which steal Doves out of a dove-cote, are by the civil Law accounted thieves o Instit de rer. divisi. §. serm. l. 3. . But by the common Law, felony cannot be committed by the taking of beasts that be savage, if they be savage §. item far. ff. de acquir. rer. poss. justit. de rer. divis. §. gallinar. l. si pavon. ff. de furt. and untamed at the time of the taking: nor for taking of Doves being out of a dove-cote: nor for taking of fishes being at large in a river: for such taking is not contrectatio rei alienae, sed quae est nullius in bonis p 18. H. 8. 2. 22. Ass. 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 have certain knowledge that it is tame: but if the Do be killed, and then stolen, this is certainly felony q Stamf. lib. 1. cap. 16. . And he that theevishlie cutteth a man's vines, by the civil Law is punished as a thief r L. scien. ff. arbour. furt. caes. . And by the Law of the twelve Tables, if any man did cause his beasts to feed upon, or himself did cut and carry away Corn growing upon 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 have imitated the severity of Draco, who did inflict no less punishment upon the stealers of grapes and herbs, then upon homicides, and sacrilegious persons: But the Romans succeeding altered this, and inflicted no other punishment then that which is above mentioned to be imposed upon him, who is within age: But as the Law of Moses s Deut. 23. ver. penult. et vlt. , so it seemeth the Law of Nations did permit a travailer 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 lie upon the ground a long time as the goods of the owner of the soil, this is felony t 22. E. 3. Corone 256. 10. E. 4. 15. Stamf. 25. . The Praetors of Rome did punish a thief poena quadrupti: and the jews with the seavenfolde, or if his goods would not amount to so much, with all the substance of his house u Proverb. 6. vers. 31. . They of Mysia do break the legs of thieves uu 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 a Far. lib. . Amongst the Phrygians he was put to death that stole 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 b id. ibid. . As in Halyfax, he that stealeth but a yard of cloth is presently put to death: because the whole live-lode of the most of them resteth incloth. And as to the interdiction of false witness or testimony, all Nations have 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: signifying c) Cicer. pro Flac. by Themis that they which did swear falsely did offend contra ius divinum & humanum: signifying by jupiter that they should not escape the revenge 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 only testify by hearsay. Pluris est oculatus testis unus, quàm auriti decem saith Plautus d 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 horny gates he meant the eyes, showing that the eyesight maketh the truest report e Hom. in Ili. . justinian calleth it oculatam fidem when the thing is known by the eye sight f § vlt. just. de grad. . And he hath diligently provided by his Laws, that innocency might be safe against sycophants g 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 h L. propriet. l. vlt. C. de probat. l. eos test. C. de testib. . In England it is severely 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 i Levit. 19 v. 12. : For truth was so much favoured amongst the Heathen, that the Egyptian judges 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 uxorem proximi sui ad concupiscendam eam, iam adulterium perpetravit cum ea in cord suo k Matt. 5. ver. 28. . And justinian his Law is tart: Si quis non dicam rapere, sed attentare tantummodo virgines sacras auserit, capitali poena feriatur l C. de Episcop. et cler. l. si quis non dicam. . And S. chrysostom saith well: Si mulier or nature ut viros irritet, etiamsi neminem vulneret, tamen adultera est ll 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 David's 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 m 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 David's heart. The desire likewise of an other man's lands or goods hath been even of the Pagans detested: Vicinorum sulcos non transgreditor, neque interuertito, saith justinian the Emperor n justini. l. Georg. tit. i. . Ne transgrediaris terminos antiquos saith Plato o Plat. lib. 8. de legib. : And therefore as I have showed before, Terminus was worshipped of the Romans: for as the Poet saith: Omnis erit sine te litigiosus ager. And the Law of the twelve Tables was: Qui terminum exarassit, ipsas et boves sacri sunto. Cu. Pompeius is highly commended of Pliny, because he would never buy any man's ground that lay and so have been put to death i Heliod. lib. 1 : Therefore some k Alberic. Gentil. lib. 1. de iur. bell. c. 4. do wonder that D. Hotoman dare affirm that the Law of Nations doth extend to fugitives and robbers l Hotom. 7. vlt. 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 verbally forbidden, are implicativelie 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 be done unto them, and how many have dealt with them, but how by rigour of Law and strict reason they ought to be dealt with. To dispute of Law, is to dispute of a bond whereby we are bound, but we are not bound to such. He bringeth likewise for proof the saying of Caesar: Should it not be lawful for Citizens to send ambassadors to their fellow citizens: when the same hath been permitted to rogues and thieves haunting the wild woods of the Pyrenean mountains m Caesar. lib. 3. de bell. civil. . But this maketh nothing to his purpose: for Caesar doth not there directly affirm that it was lawful, but he spoke 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 be pirates without all colour of justice: therefore the Pirates answer to Alexander is misliked, n Alberic. Gentil. lib. 1. de iur. bell. c. 4. when he said boldly, That because he did rob on the seas with one small pinnace, therefore he was accounted a pirate: but because Alexander did the same with many great galleys, therefore he was termed the Governor of a fleet o Cicer. 3. de repub. : howbeit this saying of the pirate seemeth to be commended by Cicero p Ibid. : and to S. Augustine q August. l. 4. de civit. dei. it seemeth to have been spoken truly and eloquently, which is very strange, unless they did account Alexander a robber, whom some doubt not to call so r Luc. 10. Senec. 1. de benefic. : and Alciat also is deceived, which not only alloweth the said speech of the pirate, but even piracy itself s 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 normans (saith P. Emilius) as antiquaries do think, did reckon and repute piracy amongst laudable things t p. Emil. lib. 3. Franc. : And Alciat reasoneth further, That they offend less than others which do so spoil upon the sea, where the law of nations only 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 be had, whether he that before was a robber do afterward become a lawful & just captain, which justine affirmeth of Aristonicus u justin lib 35 : near unto him p Plin. lib. 18. c. 6. , being better minded than Achab to Naboth, to whom he said: Damihi viniam quae appropinquat domui meae q 3. Reg. 21. : But against such the prophet Esay pronounceth a woe: Vae qui coniungitis agrum agro, et domum domui r 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, Traitors, Revoltes, and Usurpers. WIth Pirates, Rebels, Robbers, Traitors, and Revoltes, the Law of Arms is not to be observed and kept: for they by offending have not withdrawn themselves from public jurisdiction c Bald. 3. cons. 96. : for by offending a man may not be said to be of more price, or of greater liberty, than he was before d 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 have withdrawn themselves from the communion and society of men: and as Florus saith e Flor. lib. 3. , have 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 Pliny 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 f 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 g Appi. in Mithrid. et 1. civil. . Tacfarinas that famous robber of Africa grew to such height of arrogancy, that he sent Ambassadors to Tiberius the Emperor: but his army was sharp against him and said, that Tacfarinas dealt very reproachfully with him, because he being no better than a robber by highways, did notwithstanding so deal with him, as if he had been a public or just enemy h 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 have overcomed, and so survived, or else have been overcome, Frontinus of Viriallius x Frontin. lib. 2. c. 5. : and Appian of Spartacus: of Apuleius who was proscribed, and of Sextus Pompeius y 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 z 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 have borne 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 have 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 a judic. 14. : but they which ground not their wars upon a public cause are not properly enemies though they have arms, and do term themselves governors, & though they encounter such as be lawful governors, and have under their regiment a complete army of soldiers: he is properly an enemy which hath a court or a commonweal, 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 captains, & tents, and ensigns b P. Emil. li. 2. , sithence they had no just cause of war which is the only warrant of bearing arms c Ceph. consil. 620. : What shall then be said of these French men which were taken in the Portugal 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 d Connest. l 9 : but they which have been subject to others, & are recoiled from their loyalty of liege's becoming rebels, let them beware how they send ambassadors to him from whom they have revolted. But it cannot be discerned by the law of nations which Philip late king of Spain did to certain Flemings which came to him as ambassadors, though they were never under his legiance or subjection, their estates having been free from time immemorial, as all histories of account do with clear voice pronounce: And Dionysius did imprison the ambassadors of the Sir acusanes, because that city having driven the tyrant into his tower did set themselves at liberty e Plutarch. in Dio. : but Buchanan seemeth to err, which compareth two just princes, nay such as himself confesseth to be most just f Buch. in lib. de re. Scot , namely Hiero of Siracuse, and Cosimo Medici's Duke of Tuscana, to two great thieves which did justly divide the prey, & 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 have suffered it to be subdued by some foreign Lord: or else have left the regiment to others who would have hazarded that ship upon 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 be kept to an usurper: and therefore Constance the Emperor could not justly be reproved if he had punished these ambassadors, which julianus being consorted with him in the Empire by the French army did send unto him, as he threatened he would, for both julianus and the army were rebels g Amm. li. 21 . But this is to be understood only of such rebels and such usurpers as have been sometimes in subjection, and under the leigeance of some absolute Monarch: for they which do only break league or friendship, or ancient intercourse, are not to be excluded from the right and benefit of embassage h Alber. Gentil. 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 i Livi. lib. 5. 6. 29. etc. & Appi. lib. 1 de bell. civil. : they may lawfully claim the right of embassage, because they had and enjoyed it before their revolt, but otherwise it is of subjects, because they had it not so, neither is it reason that they should gain any new right, or have any advantage by their crime or offence. The thirteenth Chapter. That by the law and practice of nations, war is not to be maintained against infidels, only 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 be compelled unto it by force of arms, and that be termed a new and unusual preaching which exacteth faith by blows: than it followeth that such war is not just a c. 35. 23. q. 5. c. 1. 3. disti. 45. c. 3. de babt. . It is a point of irreligiousness (saith Tertullian) to forbid the opinion conceived of the deity, and that it shall not be lawful for me to worship whom I would, but I shall be constrained to worship whom I would not b Tertul. Apolog. et ad Scap. : Faith is to be persuaded, not to be enforced (saith Barnard) c Barn. cantic. ser. 66. : And Hilary saith, that by a new example men are compelled by arms to believe d Erasm. pref. Hill. . So Lactantius saith, that religion must be established by words, not by swords f Lactant. 5. justin. 20. 21. : & so Arnobius saith to his adversaries: Because ye can do much by force and weapons, do ye therefore think that ye do exceed us in the knowledge of the truth g Arnob. adu. ge. 4. ? Ye have 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 be upheld by other supporters. This opinion of not moving arms for religion, Franciscus a Victoria a very learned man, affirmeth h) Victor. relect. to be allowed of all writers none exempted: therefore he saith that this could be no just cause to his countrymen the Spaniards to maintain war against the Indians. And Didacus a Covarrwia a Spaniard likewise & a learned Lawyer i Covarer. 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 k Bald. lib. 5. de iustir. : yet Didacus saith, that Aquinas is of a contrary opinion l Covar. 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 law m 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 than that which is most holy. The Lacedæmonians also amongst other objections made this a cause of their war amongst the Athenians, and said that they were profaners of religion: and the Athenians did on the contrary part charge the Lacedæmonians with this, that they did draw them that yielded themselves out of the temples, and killed them n 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 o Na. Co. li. 1. . King Ferdinand entitled the Catholic, did cover all his dishonest desires with the vail of religion, as Guicchiardine noteth p Guicc. li. 12. . And Charles the Emperor the nephew of Ferdinand did not garnish his ambitious enterprises with any other colour q jou. lib. 30. . But the wars of the French and other people of Europe which did relieve the Christians vexed of the Turks, and revenging the injuries done to Christ have been liked & allowed of r Covar. 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, s Alber. gentle. lib. 1. de iur. bell. 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 divers religion, because the bond of religion is only to God: & it is a law betwixt God and man. But here we 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 be 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 kinds 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 a Caluin. li. 1. institut. . And (as Cicero saith, there is no nation which have not some religion b Cicer. lib. 1. de nat. dear. : for though many nations follow not a good religion, yet there are few void of all religion. c Baldus. 1. cons. 316. Where Agathias said, that the Almains were worthy of pity though idolaters. Therefore such are to be suffered and to be taught, not to be compelled & exterminated: and many civilians have answered in the point, that the jews were not to be molested nor enforced to the faith, though they since Christ's 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 have used strange worship have been in all commonweals severely punished. Plato against such awarded a capital punishment d Plat. 10. de legi. : the civil laws have made divers punishments e just. 1. Apol. : for this cause Socrates is killed at Athens: Diagoras is proscribed, and some in other places be punished, slain f joseph. 1. App. Cicer. 1. de nature. dear. Plut. Nic. . Anacharsis was slain of his countrymen: the Thracians for his greekish rites, which he did use being returned out of Greece h Herodot. 4. . And Tiberius was hot against external ceremonies, and against the Egyptian and jewish rites. And Augustus did use the accustomed religion, and did not tolerate any new i 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 k Dio. lib. 52. . And some Princes for the same cause do mislike the doctrine of Luther l Guicc. 13. 20. . But other Princes which hearken to Luther are of a contrary mind. Surely such religion as destroyeth the government of common weals and Monarchies, is not to be suffered m 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 n 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 jews o Phil. de for. . And others have 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 p Card. 3. de sap. . And a modern politician doth earnestly avouch the same q Lips. in polit. . Wherefore Procopius saith, that Christians by disputing subtly of their Faith, and contending amongst themselves, do stir up sedition r Procop. 3. Goth. . And an other historian addeth: If at any time controversy do arise of Faith, parents do not only dissent from their children, but the husband from the wife in seditious manner s Nic. Call. 17. Histor. 7. . Valentinian and Gratian both famous Princes, do deny unto Valens near unto them in blood, aid and secure for this diversity of Religion t Zonar. Cedr. Calais. 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 upon that reason justinian the Emperor moveth the French against the Goths, because they also were Arrians m Procop. Goth. 3. 4. . All which come to this sum, that the Prince's 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 n Alber. Gen. lib. 1. de iur. bell. c. 10. . And therefore Augustus is reported to have favoured the synagogues of the jews, because to him they seemed not Bacchanals or conventicles made for disturbing peace, but the schools of virtue o Phil. de legati. : for many times unlawful assemblies be under pretence of Religion p l. 2. de extra. or. l. 1. de coll. , which are never without danger, and have always been forbidden q Mant. in orat. pro Sext. & Asc. pro Cornel. : But when it is apparent that such meetings are not made of evil intent, the prohibitive Law ceaseth r Alciat. 5. consil. 107. Launpr. Plin. ultim. epistol. 103. 104. Euseb. 3. 27. 33. Tertul. apol. . And there is an Epistle of the Emperor Marcus extant, forbidding Christians to be troubled, unless they were convicted to have 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 jews, and did tolerate Christians. And trajan did before command, that the Christians should enjoy their liberty being instructed by Plynie of their innocency. Even in S. Peter's Church at Rome the Eastern people and the Aethiopians do offer sacrifice after their manner, & are maintained at the Pope's charge s iovi. lib. 18. . The Lutherans are permitted to have their public exercise in all the principalities and dominions of the house of Ostrich in Germany. But divers Religions are not permitted of the Lutheran Princes: though Bellarmin affirmeth it, but of the Papists which is denied by him t 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 u Lips. de una relig. , 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 Beauties' 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 divers 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 judgement 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. unus Domiuns: una fides: unum baptisma: unus Deus et pater omnium uu 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. : If God, Faith, and Baptism in general, and quocunque modo would have served, Paul who in his heavenly Epistles useth not one word superfluous, would not have said unus, una, unum: would not have urged it, would not have exacted it, would not have cried for it. Yet I would not have 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, without war. Let Lipsius therefore vu) Trismeg. de nat. deo. Dio lib. 42. 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 cold and calm. To this warlike note & hot humour, which argueth his want of policy, and that he is neither wise as a serpent, nor simple and mild as a dove. It may be answered that wars for Religion are only there to be tolerated, where there is no religion at all, or where subjects 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 subjects, and the desolation of kingdoms or countries. Are not the Egyptians to be laughed at, which with mutual wars and wounds did afflict themselves, for a monstrous and absurd religion on both sides uu 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 have no leisure nor opportunity to conspire against their king x Diodor. Sicul. lib. 2. . The Egyptians (saith one a 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 b Vopisc. Dio 39 42. : And therefore it was well considered by Augustus and Tiberius Emperors, that no Senator, that is, no noble nor mighty man should govern Egypt, or should go into Egypt c Tacit. annual. 2. . But that Princes may command the due observation and practice of Religion, according as God informeth 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 have absolute power, and may with severe punishments correct the frowardness of men addicted to strange worships, may by the united practice of all common weals be convinced. A king saith Aristotle in ancient time was the Governor in wars, the Ruler in judgements, the maintenour of Religion d Politic. lib. 3. c. 11. et 5. . This hath been observed of the Assyrians, Persians, Medes, jews, Grecians, Romans, and all other the most eminent Nations of the world e 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 juda the high places, and images; therefore the kingdom was quiet before him f 2. Chronic. 24. . And justinian the Emperor speaketh imperiously: We command (saith he) the blessed Archbishops of Rome, Constantinople, Alexandria, Theopolis, and jerusalem, to receive for ordaining and installing of Bishops, only that which this present law doth allow g 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 h Nicephor. li. 13. c. 30. Sozome. lib. 8. c. 24. . I will not insist longer upon a matter plain, but will cut off these lines to avoid tediousness. FINIS. Faults. leaf. Corrections. Agree fol. 4. a. disagree are fol. 6. b. is prescribe 9 b. proscribe Dominus 13. b. dominus sound 20. b. fond and 21. b. one Aroutius 24. a. Acontius repeated 24. b. reproved are less 38. b. at lest Cluitius 38. b. Cluilius victoria 41. a. victori Batari 42. b. Batavi farelet 43. a. forcelet repelit 44 b. repetit Latinum 54. b. Latium indice 54. b. judice convey 64. a. courage cibicall 64. b. civicall 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.