A DIRECTION or Preparatiue to the study of the Lawe: Wherein is shewed, what things ought to be obserued and vsed of them that are addicted to the study of the Law, and what on the contrary part ought to be eschued and auoyded.

AT LONDON Printed by Thomas Wight. Anno Domini. 1600.

❧The contents of the seuerall Chapters.

  • CHapter 1. Of the worthines and excellencie of the Lawe.
  • Chapter 2. Of the good qualities wherewith the student of the Lawe ought to be furnished.
  • Chapter 3. Of the choice which the student of the Lawe ought to make in his studie.
  • Chapter 4. Certaine rules to be ob­serued of the student in the reading of his bookes.
  • Chapter 5. Of the exercise and confe­rence which the student ought to vse.
  • Chapter 6. That the vnderstanding of the student ought to be propor­tionable to the intendement of the Lawe.
  • [Page] Chapter 7. That the student ought well to conceiue the reason and iustice of the Lawe in distingui­shing and establishing the proper­tie and communitie of things.
  • Chapter 8. That the words or termes vsed in bookes of Lawe ought to be vnderstoode and applied as the Lawe doth expound and conceiue them. Whereunto is annexed a table of certaine wordes, in the in­terpretation whereof, the Com­mon lawe of this Realme and the Ciuill lawe do seeme to agree.
  • Chapter 9. What methode is to bee vsed in handling & disposing mat­ters of lawe.

Lectissimis et generosissi­mis iuuenibus in hospitijs cu­rialibus connutritijs, & Juris Anglicani studio operam nauan­tibus assiduam. S.

SI Theophrastum, vt ipsum nomen indi­cat, oratione diui­num, circumscripta quaedam spatia, & angusti vmbraculo­rum circuli á fre­quenti auditorum corona, & publico iu­dicum consessu detinuere: Si Socrates, quem sapientissimum virum, Apollo sapi­entissimus Ethnicorum Daemon iudicauit, nihilo plura volumina edidit, quàm condi­dit, id est, nulla: mihi quidem generosis­simi iuuenes, non solùm in scribendi initijs, sed in vmbilico etiam & crure valdé me­tuendum est, ne prima medijs, media vlti­mis, omnia omnibus, non apposite respon­deant: Quae enim parcè nimìs traduntur desiderium, quae prolixè fastidium pariunt, et medium quaesitum inuenire difficile, in­uentum tenere difficillimum: Cum hanc [Page] arduam sanè prouinciam primò ingressus fueram, istud me recreauit & sustentauit solatium. Qui curas suscipiunt grauiores si mansuetis ingenijs vti volunt iudicibus, eorum audere, est agere, velle est posse, velitari est vincere. Fateor in aliquibus tenùs, vltrà, plus vltrà peruentum esse: Sed vel metam ipsam attingere, imò verò ad eam contendere, sudoris est et virtutis: Quanquā hoc A Euo, in hoc praesertìm Bri­tanniae Elysio, nihil in delitijs habetur prae­ter meras orationis illecebras: mira certè quae placeant, vermiculata verba, necta­reas phrases, eloquentiam Atticam expos­cunt, omnia limata, arguta, sententiosa esse volunt, planè Aristippéi sunt singuli ‘prauè sectum stomachantur ob vnguem.’ Quarè seria & submissa prece, mihi vehe­mentér obsecrandi estis insignissimi iuue­nes, vt hic potiùs otij mei foetus quám la­boris fructus (vacatio enim haec proxima quám sub aequinoctium autumnale Lon­dini non admodùm inuitus egi, cum ad pri­uata studia et negotia multum superesset temporis, hanc vobis prolem peperit) sub candoris vestri radijs calorem et vires reci­piat: [Page] cuius si compos fuerit, debebit ille qui­dem vigorem suum vobis, lucis vsuram mihi, fortunam mundo. Valete: Ex hos­pitio Graiano: pridie Nonas Septemb. An. salutis humanae. 1599.

Vobis addictissimus Guilielmus Fulbeckus.

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

  • Fol. 74. b for Index read Iudex
  • fol. 75. a for Debito read Debitor
  • ibidem. for mixt read mixtae
  • fol. 76. a for Doto read Dolo
  • ibidē. b for Fidenistor read Fideiussor
  • fol. 77. a for fato read salo
  • fol. 78. b for Maritinum read Maritimum
  • fol. 80. b for contumately read continuately
  • fol. 81. a for vacillaus read vacillans.

The other faultes escaped in the prin­ting of the other Chapters, a curteous eye and vnderstanding may easily re­forme.

OF THE WOR­thines and excellencie of the Lawe.

The first Chapter.

AS nothing more encourageth the sol­dior to fight, and to giue forth apparan [...] signes of valor, then the glorie & renowne which is gained by exploits of warre: so nothing is a greater spurre to the student of any Arte or Science, then the iust reward of fame and commendation, which belongeth to those, who by labor attaine to perfection in a­ny praiseworthie science. For as nature re­wardeth the Bee with hony, so Art recompen­seth the painfull student with riches, praise or honor. And howbeit some men make small ac­cōpt of praise or good report, as being in their owne conceit but an emptie sound, yet wise men haue thought & written, that a good name is better then Gold,Prouerb. 2 [...] Aym. cons. 145 viso proces [...] in fi. and that a mans credit is the fairest flower of his garden. Now if praise be due to Arts and sciences, as being the [Page] best treasure & endowment of the mind, religi­on only excepted, then surely the knowledge of the law may in the first place challenge prero­gatiue of dignity, by whose righteous doome & decree it is prouided, ruled, & ordered, that al o­ther sciences should haue their maintenance & support, in such plentiful & condigne maner, as by merite or equity doth to them of right ap­taine. But euery art receiueth his commenda­tion by the end & scope which it proposeth to it selfe. And the chiefe end or last marke of ye law aswel as other sciences is God his glory. But ye next & immediate end, which is allotted to it, is to administer Iustice to al, & in that sence it may be called the rule of Iustice: For religion, Iustice, and law do stand together, & are toge­ther trodde vnder foote by such as neither care for God, nor goodnes: such as are rehearsed by one of notable iudgment.Cyprian de 12. abusio. A wise man with­out workes, an old man without deuotion, a yong man without obediēce, a rich man with­out almes; a woman without chastity, a gen­tleman without vertue, a contentious christiā, a proud begger, an vniust king, a negligēt Bi­shop, a cōgregation without discipline, a natiō without law. But Iustice is then rightly ad­ministred, when it is not sold,Can. venden. q. 3. Canon pauper 11. q. 3. When there is no respect of persons.Deuteron. 1 Whē hatred is away & conscience is present.Can. sex. 23. q. 3. When rigor is tēpered with mercy.Can. omnis & sequ. can. discipli. 45. dist. And Iustice must be regarded of [Page 2] the law as the load-star is minded of the Sea­man, for without it can be no gouernment. An other end of ye law is the good estate of the peo­ple. For it is an Aphorisme amongst the lawes of the 12. tables: Salus populi suprema lex esto: Let the safety of the people be accōpted the chiefe law. l. 12. tabula [...]. c. 6. And ye deserueth not the name of a law which hath no relation to publik profit. Cicer. 2. de legi. For Hermogenes said wel yt euery law was made for the good & profit of men.lib. 2. de sta [...] homiū. And Plato saith, that a Law-maker ought to haue regard of 3. things especially: namely, that the cōueni­ent liberty of the comon weale may not be im­peached by the laws, that they may preserue a­mity amongst the people, & that they may fur­nish thē with wisdome.lib. 2. de legi. Wherefore they that dispise laws, haue no care of comon profit,Cicae. pro Caecin. be­cause they were made for comon vse,lib. 2. de legi. & with­out law, which I interpret to be an order esta­blished by authority, neither house, nor city, nor natiō, nor mankind, nor nature, nor world can be.Cicer. lib. 3. de legi. And therfore Cicero saith, yt our ancestors were of such vertue & wisdome, that in making of their laws they had no regard, but of publike good:Cicer. lib. [...] de inuent. For they would not write any thing to hurt, and if they had written any such things, it would haue bin reiected as soone as it had bin vnderstood. It is manifest there­fore that the end at which the Law doth ayme is the generall aduantage of common societie [Page] in a iust maner distributed and dealt to euerie one. For, non sufficit bonum fieri nisi bene fiat, It is not sufficient to doe that which is good vn­lesse it be done in good sort, and therefore let not any man, which vndertaketh this professi­on lay conscience aside: for though the charge and calling be seculer, yet it must be religious­ly handled. For God is the author of the Law, and the reuenger of the abuse thereof, The weight and measure, Pro. 16. saith Solomon, are God his iudgments, and therfore if any man main­taine any wrong by colour or pretence of Law let him know, that though man be hurt, yet God is offended, ye do not execute the iudge­ment of Man, Chroni. 2. c. 19 but of God, saith Iosaphat. God is the beholder and vmpier of Counsailes and Iudgements, and surely if a man do well dis­charge this weightie and excellent function, there is no man of any religious habit or vo­cation in higher place or greater reckoning with God. So much the more are they to bee reprooued, who exercise sychophancie, fraud & caueling in the handling of causes, being wre­sters of Lawes, and wringers of money, whose conquest in bad causes maketh them triumphe as much as Romulus did when he had killed his brother: nay as Atreus did when he had cō ­past the death of his brother Thyestes, boasting and glorying.Senec in Thy. nunc parta vera est palma, nunc meas laudo manus, Now haue I gotten an ho­norable [Page 3] victorie, nowe I praise my handie worke, but they in whom conscience beareth stroke are farre otherwise addicted, and shalbe hereafter otherwise rewarded. Nay euen in their life time do they possesse ye ensigns of au­thoritie & dignitie, & by good right may they challenge many special fauors, immunities & indulgences. Constantine the Emperor gaue to the professors of the imperial Lawes, full & perfect freedome from all collaterall charges, taxes, and other burdens of the cōmon weale, L. medic. 1. 6 de profes. & medi. and he decreed also that certain yerely pensi­ons should be paid vnto them out of the Trea­sury, D. L. medi­cos. & the Emperor Valent. would haue thē which by the space of xx. yeres were professors of the law, to be illustrated by the name of Co­mites, a name of excellent dignity.l. vnica & ru­bri. de profes. qui in vrbe Constantino­pol. docent ex lege meruerūt. Comit. li. 12. c. tit. 15. Many o­ther priuiledges & benefits are mentioned in the Ciuil law, which belong as well to Stu­dients as to professors, and hereupon had that saying his originall.

Dat Galenus opes, dat sanctio Iustiniana:
Ex alijs paleas, ex istis collige grana.
Angel. Are­tin in §. proaem. institut.

Neither hath England bin vnkind or strait handed to men of that coat and calling: for in old time as I find in M. Plowden, who was credibly infourmed thereof, there were fower Reporters of the cases of Law, which were chosen men, and had a yerely stipend for their [Page] paines and trauaile therein, paied by the king, Plowd. in Epi. a les estu­dents de le cō ­mon ley. But some will say that God forbiddeth vs to contend. Who denieth that? but he doth not forbid to Iudge & determine controuersies: & there is great difference between iudging and contending: for though God do forbid thee to beate a poore traueling man: yet he doth not forbid thee to bind vp his wound, when he is hurt and maymed of others. So though he do greatly abhorre the hatred, rancor, malice, and disagreement of men, yet he is wel pleased and contented yt such pernicious & contagious dis­eases should be cured. Let him that condēneth the fault, approue the remedy. One mā rageth with a burning desire of reuenge: an other cō ­ueieth to himselfe an others mans goods by craft, whom when charity & duty cannot bring into the right way, his disloial dealing must be repressed by the seuerity of Iudges. Moses, Dauid Solomon, committed no sin, when they caused wicked men to be rigorously punished: & though Christ do condemne a quarrelous & reuengeful person, yet he leaueth to the Iud­ges their authority, whether they rule & order causes by the Lawes & customes of nations, or by the law of Moses. Ioseph, Daniel, Naaman, the Centurion, did gouerne cōmon weales by the lawes of the heathen. Surely the politicke lawes of Kings & Magistrates are greatly to be heeded & regarded, which Christ himself al­lowed, [Page 4] when he paid tribute to Caesar. And the profession & practise of the knowledge of lawe is warrāted by the example of great men, who would not haue borne the names of professors, if the science had not contained in it singuler wit, excellent wisdome, & profitable directions for the whole course of mans life. It is well knowen that the Camilli, the Curij, the Fabri­tij, the Fabij, the Claudij, the Scipioes, the Crassi, the Iulij the Ciceroes, & the Scaeuolaes were sin­guler men and singulerly skilled in law. And to giue thē their proper appellation were law­yers. These men gouerned their cōmon weals not in the shadow, in darknes or corners, as the Grecians did, but in the cleare light of the Sun, and in the face of the world, vsing expe­rience as a Pilot against the boysterous & tur­bulent affections of the people. And therefore Virgil when he distributethVir. Aeneid. 6. seueral sciences to seueral Countries, appropriateth the science of gouerning cōmon weales to the Romaines.

Tu regere imperiopopulos Romane memento,
Parcere subiect is & debellare superbos.
Mind thou O Romaine men by law to guide,
To spare the meeke, and ouer-master pride.

But some accompt it a matter of too great cu­riosity, yt the laws which should be plain & ma­nifest to al should be reduced to an art obscured with difficult cases, shadowed with conceited [Page] termes, and as it were, couered with cloudes, and wrapped in darknes: to whom I answere that it is very expedient, that there should be a certaine art and science of the Law, generall rules & preceptes, and conuenient discourses. For the particuler things which do fall vnder the obseruation of law ar infinite, & the weak­nes of mans memorie cānot tollerate the mul­titude of particular lawes: and therefore it is conuenient that that which we call aequum bo­num, which in plaine termes is nothing else but perfect reason, should be comprehēded and deliuered in certaine generall preceptes, and Plato alleageth this for a reasonPlat. in polit. because it is necessarie, that there should be Regia disciplina a princely science, for he suteth it with that name, which may by a generall censure, order and dispose of all things without regard of e­uery particular circumstance. For the certaine knowledge of matters, it is good that the law should be bounded by certaine rules & limits: For a mā could not certainly know what were his owne, and what an other mans, vnles the Law should as it were by finger point, & shew vnto him, what, when, and howe it were his, and therefore true is that saying of Cicero, Cicer. lib. 9. Epist. famil. Omnia incerta sunt cum a iure discessum est. If you depart from Law there is no certain state of any thing. And his opinion is in an other place,Cicer. in ora. pro Caecin. that our inheritance rather cōmeth to [Page 5] vs by the law, then by our auncestors: for though they doe giue is, or leaue it vnto vs, yet it is the law which doth settle it in vs, and doth preserue the possession thereof free and inviolate vnto vs. Wherefore it is to good purpose, that the Law should be definite in it selfe, and should consist of certaine conclusions which should be as the listes and periodes of the science, by the contemplation of which, a man may be instructed and sufficiently furni­shed for particuler causes and euents: For the particuler case lyeth as it were embowelled, and is implicatiuely contayned in the generall learning, and there is nothing in the Law which may not be reduced vnto some vniuer­sall theoreme, which may easily be conceyued and remembred, because it is generall.Marcell. 2. ff. de iur. et fact. ignor. And though the professors of the Law doe make-particuler arguments of speciall causes, and do admire examples or cases to the illustrating of that which they do principally handle, yet the Law it selfe is comprised within certaine rules. Neyther ought it to trouble vs, that the Law bookes are so huge, & large, and that there is such an ocean of reportes, and such a perplexed confusion of opinions, because the science it selfe is short and easie to one that is diligent, according to that saying: Industriae omnia serua fiunt, All thinges are seruants to diligence, or come at her commaund, and artes [Page] ar not to be estemed by the greatnes or smalnes of the books, but by the goodnes of their rules. And though ye lawes which do vind mens liues & maners ought to be vnderstood of all, that their prescript being knowen, men may decline frō that which is for biddē, & follow that which is commaunded: yet that may be done either by their own means, or by ye meanes of others: & if a mans braine be no fit mould for the Law, let an other mans mouth be his teacher. Hence commeth the name of Counsailor, because in doubtful causes he may resolue & giue counsel: Whereby appeareth aswell the necessity, as the excellent vse of the calling: for what can be more conuenient or of better oportunitie, then that a man of experience should shew the way to one that is ignorant. It is therfore expediēt that there should be lawes written, & that such lawes should not be altered without vrgent oc­casion: for it is a fonde part to striue against the course & stream of lawes, & customes receiued. A great question it hath bin heretofore, whe­ther common weales were better gouerned by written Lawes, or by the present & voluntary conceit of ye Magistrate: This matter, because religion it selfe hath committed ciuil duties to the wisdome and ordering of man, ought to be measured by the examples of wise gouernors & by popular sense. What good cōmon weal hath there euer bin without written Lawes, which haue bin vsed by the Egyptians, Cretensians, A­thenians, [Page 6] Romanes, & Iewes. The writing or the engrauing of lawes in Tables is a principall cause of ye certainty of the same, & without cer­tainty, it should be of smal credit: for what au­thority or force should it haue, if it did alwaies change like the Moone, or like Vertumnus: but when causes ar decided by the opinion & wil of the Magistrate, the power of gouermēt may be in the hands of such as be vnskilful, or wicked, & so either for want of skil, or conscience, Iustice may faile of her course. How often might the pretēce & shew of iustice beguile vs? how often might iustice be peruerted by fauor or malice? But if Lawes were not generall, & should not sometimes restrain Magistrates & gouernors, great inconueniēce would ensue: euen as great as happened in Athens by the violent domina­tion of the 30. tirants, who when they had can­celled & disadnulled the Lawes, did exercise a common butchery and slaughter of good men: Wherfore, as in dangerous tempestes the ship is not rashly cōmitted to the winds: but there is neede of a skilful Pylot by cunning & care­fulnes to gouern: so the wauering & passionate mind of the Magistrate, must be ballassed and weighed downe by Law, least his own priuate affections do driue him from doing Iustice as from the hauen. Aristotle affirmeth, that God ruleth that common weale which is gouerned by a written Law, because the Lawes are the [Page] champions and defenders of conuenient liber­tie, then which there is nothing more pleasant in this life: for what thing can be more happy, then to be free from the feare of iniury, & safely to inioy the societie of men, and therefore he would not haue the gouerment of the com­mon weale to be committed to any one man, though very vertuous, without the regiment and direction of Lawes. Neither let any man say, that I do sinisterly iudge of the natures & dispositions of men, in that I accompt no man of so approued and speciall vertue, and fidelity, that the mannaging of common affaires may be offered vnto him to order them at his will and pleasure without the appointment & war­rant of lawes: surely I could wish that euery gouernor were a Numa: But yet I would haue the law to be ioyned with the Magistrate in the act of gouerment. Neither do I fancy or figure in my minde any happier common weale, then such as may accord with the tenor and progresse of humaine affaires. If a man should imagine that the aucthoritie of gouer­ment were in the handes of the Stoikes, such as would neither be moued by hatre, nor fa­uour, though they in other respects were very vnfit to gouerne, how shall their humors be sa­tisfied, who had rather be gouerned by written lawes, then by vpright Magistrates? for such is the madnes and frowardnes of some, that [Page 7] they wil not be contented with the equitie and faithfull dealing of the Iudges, but will still contend by the rigor, and dint of law, and will trie all extremitie, being often times more at iarres & at oddes with the Iudges, then with the aduerse partie: here the aucthority of Iud­ges will be weak, vnlesse the lawes publikely receyued do strengthen it: so that in the writ­ten lawes there is not onely a safegard for in­nocency against iniury, but also for the Magi­strate against the importunitie of the people: But as wayfaring men whilest they trauaile are not afraide of going a stray, when Mercu­ries image doth point out vnto them the way that they are to goe: so good men when a cer­taine law is proposed vnto them, when by it they know what euery man ought to perform, what to auoyde, they are secured and do wholy repose them selues in the protection of lawes. To the intent that the Hebrewes might well agree, & haue good order amongest them sel­ues, God did enact and establish certain lawes, that they might iudge by prescript, and rule, least the law being ambiguous might procure dissentions. And other people and nations haue either by the tyrannons domination of Magi­strates, or the outragious discord of the people bin enforced to receiue Lawes as the square and measure of their actions. In the Citie of Athens when there was continuall debate [Page] about the difficult points of ye law thē in force, there arose three factions of men, not of the worst sort, but yet not well agreeing in mat­ters of state: the Citie by this meane being greatly molested, and the hartes of men being edged & exasperated by the festered sore and cankerworme of contention, the gouernment was committed to Solon: he surueying by depth of iudgement the weake, and impuissant estate of the Citie, made Lawes, whereby peace and contentment were restored: And when he saw, that these Lawes were the sinewes of the good estate of the citie, he determined that whosoe­uer should hold any iudiciall place, should in precise tearmes take oath that he would iudge according to the Lawes. This was also the cause why the Romanes dyd flie to a written law: the Magistrates dyd arrogate & assume too much to them selues, the people did excee­dingly grudge and murmure that their honest libertie was impeached by the maner of their ruling, and the best men were at variance in matters of Law: so that it was thought meete that some equall Lawes should be in force, whereby the rashnesse of the people, & the vio­lence of the Magistrates might be moderated: For this cause the Lawes called the Twelue tables were prescribed to the City, which yoak was willingly receiued, because without laws they knew their common weal could not pros­per, [Page 8] nor continue. And as there ought to be a certain forme of Lawes, so these lawes ought not to be altered or abrogated wythout great occasion, & the euident aduantage of the cōmon weale. There was a Law amongest them of Locros, that whosoeuer would make a motion or inuectiue against any receiued law, should therof deliuer his mind, hauing an halter about his neck, & if it were agreed by the assembly, that the thing which he indeuored to perswade were for the good of the common weale, the man was safe, & receiued cōmendation: but if it were disallowed, and reiected as an vnpro­fitable admonition, he was streight way han­ged and receiued death as the guerdon of his innouation. And in Athens there were a kind of men called [...], who in all publike mee­tings did sit amongest the chiefe Magistrates, & did put them in mind not to decree any thing against the Lawes in force. Thus it is euident that both the making & maintayning of lawes is necessarie. And it is rightly said of Cicero, that the Law is as necessary for the gouermēt of a state, as the soule & mind is for the preser­uation of the bodie,in orat. pro Cluentio. this (saith he) is the bond of all dignities, and degrees, which are in the common weale, this is the foundation of liber­tie, the fountaine of equitie. The will, counsel, & decree of the Citie is contained in the lawes, as the bodie can doe nothing without the soule: [Page] so a citie without Law cannot vse her actions, power, or aucthoritie. The Magistrates are the ministers of Lawes, the Iudges are inter­preters, the people are the Seruants, that they may haue true libertie. The Law is thus de­fined by Cicero, 3. lib. 1. de legi. Summa ratio insita á natura, quae iubeat ea quae facienda sunt, prohibeat (que) con­traria, A principall reason ingrafted in vs by nature, which commaundeth the things that are to be done, and forbiddeth the contrarie, and all the particuler and seuerall lawes of di­uers nations, are but the branches of this law: for the lawes be certain and cleere intelligen­ces, and rules, whereby the mind is addressed to pursue that which is good, and to eschew the cōtrarie: and they offer to the mind the formes and Ideaes of vertue and dishonestie. So that in the sacred precepts of law, as in a christall glasse, a man may perceiue what he may doe with praise, what he cannot doe without infa­mie: for the common places, which be handled by diuers, of common duties, of that which is truly good, of that which is perfect happines, of the best estate of a common weale, do not so sufficiently qualifie and instruct the vnder­standing, as the law it selfe. But here I shalbe crossed by an other obiection, that great & tedi­ous are the labors which are to be sustained in the study of the law. Surely there is nothing of weight or woorth, which may be compassed [Page 9] without paine & trauaile, and yet if the paine be compared and ballanced with the profite, it is but as a few drops of haile to a whole shower of Manna. What would not a toward­ly man do? what would he not vndertake by his wisedome & warines, to keep all danger from the bodies, heads, and lifes of the inno­cent: to preserue his memorie from obliuion, and silence: to be of great accompt amongst the greatest: to attaine to that knowledge, which is the highest of all humane artes and sciences? and though it were as hard a mat­ter for a young gentleman to gaine the know­ledge of the lawe, as it was for Phaeton to ascend vnto the Chariot of the Sunne, who ere he could accomplish that, was to passe through vncouth wayes, and by the ghastly formes of deformed creatures, by the terrible Signes of the Bull, the Lion, and the Scor­pion Quid. Meta­morph., though (I say) a Studient ought to haue all the lawe perfect, and to passe through a multitude of cases, iudgements, Statutes, arguments, treatises, comments, questions, diuersities, expositions, customes of courtes, pleadings, mootes, readings, and such like: yet sith there is no arte nor science, by which the common weale receiueth so great benefit: sith there is no course of life, no time of age, no estate of men, which can either florish or be without the safeguard of lawes, and sith the [Page] difficultie of the science is rewarded by the dignitie, credit, and ample fortune which be­longeth vnto it: the hope of them which em­ploy themselues in this studie ought not to waxe faint, nor their mindes to be daunted with the labour and paine, which all artes require: but they ought to be incited and allured to proceede in their studies by the excellent and honorable rewardes of the same.

Of the good qualities wherewith the Student of the lawe ought to be furnished.
The second Chapter.

BEcause many applie themselues to the studie of the lawe, without deliberate consideration of their qualities and sufficiencie, so that many times they finde not that contentment, which otherwise they might enioy. It is very conuenient that they should know what qua­lities are requisite in him, who is to em­ploy [Page 10] his time in the studye of the lawe: for as Aristotle sayeth,Aristot. lib. 10. Ethico [...], ad Nicomach. Rules and precepts haue not force in all, but the minde is to be decked with good gifts, that it may take ioy in things that be truly good, and abhorre the contrarye. The first and chiefe thing that I doe require in him, is, to haue the true knowledge, and feare of God, without which his other knowledge is but as a sword in the hand of a frantike person: and where the light of truth is not, there is a darke and tenne-folde mayste about the minde. But where God is not, there is no truth, there is no light, there is no lawe. The soule and sences, are but the instruments of his will, which hee bindeth and looseth at his pleasure. And if they turne from be­holding him to the contemplation of any arte and science whatsoeuer, surely they effect nothing but their owne destruction. I knowe this is no pleasant sound to some daintie eares, who cannot tollerate any na­ming or mentioning of religion, which the Paganes, whome they make as presidents of their prophane manners did not onely regard, but in the very front and begin­ning of theyr lawes (such was their reue­rence) they prefixed a precept and caueat for the obseruation and keeping of holy rites in a regardfull manner: Ad diuos adeunto [Page] caste, pietatem adhibento: qui secus faxit, deus ipse vindex erit: Let them go to the worship of God with a chaste minde: let them vse re­uerence: God will be the reuenger of him that doth otherwise. Leg. 12. ta­bular. c. 1.. Some perhaps had rather heare a curious discourse handled by some Astrologer, whereby they might haue certaine notice and vnderstanding what com­plexion and constellation is most fit to enter into the studie of the lawe: with such dregs they would haue their minde satisfied. They perhaps, will beleeue (for what is more credu­lous then fansie) that they which are borne vnder Iupiter, are not fit for the study of the lawe, as Cocles teacheth them,Cocles in Physiognom. that they which are borne vnder Mercury, are of quick conceit, but quickly vnconceited, soone ripe and soone rotten, especially if Mars be ioyned with Mercury in the constellation, as it hapned according to the suggestion of some in Hermogenes the Sophist, who writ of Sophistry in his youth like a graue old man, and was in his old age as a trifling boy. But they which are borne vnder Saturne, are sayd to be more dull in the beginning, but in pro­cesse of time of more sound and deepe know­ledge then others: surely I am not of opini­on, that the soule and the powers thereof are subiect to the sway and motion of the pla­nets. If I should thinke, that it were a sub­stance [Page 11] flowing from the bodie, or so mingled with it, that it might be accompted a kind of bloud, as some Philosophers grossely concei­ued, this might seeme vnto me probable.Cicer. in Tusc. quest.. But I am fully and immoueably perswaded, that the soule commeth from aboue into this strange matter, whereof the bodie is compac­ted, and is of an incorporeall nature, which is not subiect to the impression of the senses. For when sicknes affecteth the bodie, the soule is sound: and when the bodie is racked, the minde is free. Neither is it to be maruailed at, that it conformeth not it selfe to the change of the bodie, because some materiall parts of the bodie are not alway partakers of the change. Let a man go abroade in the most cold and freezing weather, yet his eyes will neuer be frozen, let him stand by a most scor­ching fire, yet they will neuer feele heate. The strange and different substance of them from the other parts of the bodie, I take to be the cause. Now the Planets do worke only vpon corporall things, for their influence is of the same sort as the attractiue force of the Adamant, or the Geate, which cannot worke but vpon materiall things: and therefore I may well conclude, that the Starres do not qualifie the minde, but the bodie only, which being a cotage of clay, must needs beare the wind and weather, the alteration and impres­sion [Page] of the Planets. Wherfore let not any mā who aymeth at the knowledge of the lawe as the marke of his desire, make any estimatiō of these Physognomicall fictions: let him not goe to the house of Mars nor to the spheare of Mercury for knowledge. Si quis indiget sapi­entia, postulet a domino: If any lack wisdome, let him request it at the hands of God Iacob. c. 1.

He must likewise obserue, that the way to the hight of knowledge is by humilities gate. Let not the increase of his skil make his mind to increase, and swell, after the maner of loftie spirited men, who when they know nothing, yet would seeme not to be ignorant of any thing. Euery auditor must be willing to heare Oportet discentem credere, sayth Aristotle, In Analytic. posterior., who though he were a man of singuler know­ledge, yet gaue example of great modestie, by this censure, Maxima pars eorum quae scimus est minima eorum quae ignoramus, The greatest part of the things which wee knowe, will counteruaile but the least part of the things which wee knowe not: as if a man should compare one hundred to one. But none doe more boast of knowledge, then the igno­rant, as nothing soundeth more then emp­tie vessels: and they nourishing in theyr mindes a haughtie and ample opinion of theyr supposed abilitie, are so bewitched with selfe-loue, that they thinke they sucked [Page 12] eloquence with their nurses milke, that the bees which are feined to sit vpon Platoes lips, did flye to their lips whilest that they were dreaming in the cradle: that they were able to teach old men before they had teeth: and tri­umphing in this conceit, they admire them­selues, & disdaine others, aduancing their own doings, & discommending the fruitful labours of other men, like apes, louing their deformed children, and like phantastick Pygmaleons wo [...]ing their owne deuises. If any thing be spoken of thē sometimes clarkly, and acutely as they thinke, they make an inward applause vnto thēselues, & cherish their harts with this acclamation, facete! lante! lepide! nihil supra! but if any thing be spoken of others aptly and sensibly, they straightway inferre, Quanto tu melius hoc inuenisses Thraso! But a discreete & aduised man, wil iudge none to be so meane, but that he may learne something of him: for though he know more then others, yet hee must thinke, that others knowe somewhat which he knoweth not. The best and the most graue man saith Cicero, will confesse, that he is ignorant of many things.Cicer. Tus­cula. 3.. And Solon was not ashamed to say, that in his old age he was a learner.Cicer. in Catone maior. And Iulianus the Lawyer sayd, that though he had one foote in the graue, yet he would haue an other in the schoole.Lapud Iuli­anum de fide commissis li­beral. in p.. The next thing I require in a Student is tempe­rance, [Page] which I do not take so strictly as Ari­stotle doth, who defineth it to be a restreint from corporall pleasures, which are obiected to the sense of feelingAristoteles lib. Nicoma chior. 2. & 3. & in lib. mag­nor. morali., but would haue it so largely vnderstood as Plato Plat. in Con­uiui., Cicero Cicer. lib. 1. officior., and now of late timeScalig. lib. 3. poetic. Albe­ric. Gentil. lib. de leg. 3. c. 13. Scaliger, and D. Gentilis haue taken it to be, a restreint of the minde from all voluptuousnes and lust, as namely from couetuosnes, excesse of diet, wantonnes, and all other vnlawfull delights. A Student must in his diet be temperat, and abstinent, for as Musonius sayth, Continency in dyet is the step to wisedome.Stobaeus de temperantia. A fat and full belly yeeldeth nothing to a man but grosse spirits, by which the sharp edge of the minde is dulled and refracted, and too much meate cast into the stomack doth ingender nothing but crudi­tie and diseases. This measure must be vsed in our diet, that no more be taken then will suffice. Seneca prescribeth a good rule,Senec. epistol. 111. Fa­mem fames finiat, Let hunger end hunger, which is nothing els in plaine termes, but that a man should rise with an appetite, being rather satisfied then filled. Yet he that feedeth more plenteously, is not to be reprooued, if his bodie do stand in neede of more copious nou­rishment, and a man must not so abstaine, that the functions and duties of the minde and bo­die be hindered. Good and moderate nourish­ment doth quicken the spirits, and they do [Page 13] giue strength to the braine, but that which is vnwholesome and immoderate doth stop, thicken, confound, and destroy them. As in diet, so in other things, it is good for a Stu­dent to haue the rule and mastery of his mind and appetite, neither so to let slip the reignes to his desire, that he will for any commodious respect, bring himselfe to shame and obloquie, and for a present aduantage, incurre a perpe­tuall discredit. Plato hath a sentence worthie of obseruationPlato in Timae., Et dicere & facere ea quae de­cent ad sobrium & prudentem hominem tantum pertinet, To say and to do the things that are comely, belongeth only to a sober and wise man. That example of rudenes vsed by cer­taine Florentine Embassadors, is to be auoi­ded. Iouius reporteth itIoui. lib. 28. They were sent as Embassadors to Charles the fift, and Pope Clement the seauenth staying at Bonomia, and being Macthants, caried with them (such was their extreame couetousnes) certaine wares to make gaine of, thinking they should be free from custome, as going vnder the name of Embassadors necessaries. But this being perceiued to the two great Estates, mo­ued the Emperour to laughter, and the Pope to anger, who was a citizen of Florence. The Legates departed with infamy, which they well deserued for abusing so honorable a cal­ling by such base indignitie, which may be a [Page] warning to all to preferre their credit before their greedie desires.

Dilligence in the pursuing of any studie is of great weight and moment, and in the studye of the Lawe it hath principall force and effect, for the cases are many in number, which must be read, remembred, and applyed, which cannot bee compassed but by extreame diligence. And whereas some pretending a lumpish idlenes, would haue the Lawe measured with narrowe li­mits, and woulde haue the multitude of vo­lumes, cases, rules, and diuersities abrid­ged and made lesse, surely they giue large te­stimonie of their great desire of ease. But ease is a very badde medicine for difficul­tie, and their pretense is wholy repugnant to reason, yea to possibilitie. They that would haue fewe lawes, must procure that there be fewe causes, and little busines, which it is not possible for any to bring to passe. If it were possible for these faint students to take away the infinite and the innumerable affayres and actions of men, then that which they require might sort to good effect. But that lyeth not in their power, and therefore they should surceasse theyr sluggish surmise. For this cause Lu­douicus Viues is iustly reprehended of Albe­ricus Gentilis, in that he held, that all things [Page 14] might be finished by fewe lawes, whome Gentilis Albericus Gentilis dia­logo primo de iuris interpre­tibus. affirmeth, to fight against com­mon experience. For if many contentions or controuersies should happen, which none can bridle or preuent, if the lawe shoulde not handle, discusse, and determine them all, the lawe shoulde doe iniurie, and it should not be the handmayd of Iustice, it should not Suum cuique tribuere. So that in the Students minde this resolution must bee fixed, not to sinke vnder the burden, but with all conuenient industrie to fol­lowe hys Studye, neuer to be wearie of paynes, nor to slacken his endeuour, sith nothing of price and accompt is purcha­sed without great labour, by which hee may attayne to the knowledge of many excellent thinges more worthie of admira­tion, then prayse. Neither is it seemely to pretende weakenesse of bodye, and ten­dernesse of complexion, when health and strength doe well serue, and may well be imployed in Studye. Ciceroes bodye was neyther of yron, nor of oake, yet hee was not broken, nor in manner altered by con­tinuall night-watchings, noone-sittings, and morning-risings, by many laboures, contemplations, and studyes, by the great charge of hys houshoulde, by the weigh­tie care of the common-weale, by writing [Page] manie bookes, and epistles without number, as Cardanus well obserueth.Lib. 4. de sa­nitate tuend. c. 16.. and why should any man despaire to doe that which another hath done, especially hauing the like disposition of minde, the like faculties and meanes to attaine to knowledge, and the like desire. This diligence doth chiefely shew it selfe in reading and hearing. It is not fit for him that heareth or readeth, to haue a mind wauering from the purpose, and as it were going on pilgrimage. A man is then said to floate in fancie, and to wander in thought, when hee doth not bend his minde to that which is handled, and when he is amongst his bookes in bodie, but not in minde, or when he is present at some reading, and doth not shew himselfe attentiue, but doth number the tiles of the house, or buildeth in the aire, or doth nothing lesse then that which he should do: but the force of the mind must bend it selfe to that thing only which is to be conceiued. For the power of our mind and vnderstanding is more strong when it is vnited, then when it is dispersed, and distracted into many parts.

Pluribus intentus minor est ad singula sensus.

But as these things forenamed are of great consequence and value to the Student, so wisedome that rare and excellent vertue of [Page 15] the mind is of great importance, which I do rather exact, then require in a Student, for without it nothing can be done decently or perfectly: and surely to a Student of the law it doth specially appertaine, for it doth con­sist in the cunning discerning of the truth of euery thing.Cicer. Offic. lib. 1. And a Student ought not only well to deliuer things conceiued, but well to iudge of them, and in this part standeth the best part of a Lawyer. It is the propertie of a wise man most sharply to perceiue what is true, what is false in euery cause and contro­uersie, not to be deceiued nor inueigled, not to be vnconstant in opinion, nor ignorant in the circumstances of things. The ordinarie meane to attaine to wisedome, is to vse time and diligence sufficient for the consideration of things, to heare reasons on both sides con­tending in his mind as it were armed and pro­fessed enemies, not to iudge of any thing rash­ly or hastily, nor to giue a sleight censure of weightie matters. For as Fabius sayth in Lyuye Liuius lib. 22. ‘Omnia non properanti clara certaque fiunt, festinatio improuida ac caeca est, ’ All things are plaine and certaine to him that is not rash nor headie. Haste is improuident, and blinde, which is therefore rightly termed of Plato Nouerca Scientiae, The stepdame of know­ledge. Plato in politic.. And the Aetolian Magistrate sayd well,Liuius lib. 31. That there is nothing so great an e­nemie [Page] to good aduise, as haste, which brin­geth pennance swiiftly, but warning too late, and without profit, because counsaile hastilie giuen cannot be reuoked, neither can the thing which is disordered by badde ad­uise, be entirely restored or brought into or­der againe. But where a man taketh time sufficient, hee cannot be sayde to doe any thing rashlie. Wherefore not vnfitlie hath it beene defined by some to be the know­ledge of the oportunitte of doing things a­right, and the cause that all things be well done,Diogen. Laer. in vit. Platonis. Cicer. lib. 1. officior., and it hath not onely a stroake in worldly affayres, but euen in matters of re­ligion: for by it a man may be so directed, that hee may neither decline to superstition, nor to that which is contrary vnto it, name­ly, impietie or atheisme. And it is the leauill or compasse of all other vertues in the acci­dents and affaiers of this life. It will shewe the times and measure of boldnes and auda­citie, least it turne to rashnes and impuden­cie. It will so order Temperance the mo­ther of order, that it may not be accomp­ted rudenesse or inciuilitie. It will guide Iustice which gouerneth all things, least it turne to crueltie: nay it wil moderate it selfe, least it be termed craft or deceipt. By these effects the Student may easily perceiue, how necessary it will be vnto him.

[Page 16] The qualities aboue mentioned, do so di­rectly respect a Student, that they may be numbred in the ranke either of adiuments, or ornaments. One thing yet remayneth, which is, to be placed and raunged amongst the ornaments only, being a meere ornament, yet it doth as much adorne, as the other doe helpe: and that is curtesie or mildnes, which doth as much decke and illustrate any gentle­man, as the dyamond doth the gold to which it is fastned, or as the chaine of the necke doth giue a luster to the brauerie of the o­ther partes, it setteth in order, garnisheth and graceth the other giftes of the minde, without which they shoulde be vnsauorie, and want applause. I distinguish it from Ciuilitye called Vrbanitas, and [...], for that is onely to be seene in publique mee­tings and assemblyes, but this may shewe it selfe within a mans priuate walles, or chamber, and may be vsed betwixt man and man. Most loathsome and deformed are the manners of the Stoikes, who whilest in sowernes of minde they seeke to ouercome mans nature, do exceede it, and of men they become beasts. And such manners haue dis­graced men of excellent abilitie. Coriolanus was by nature a Stoike, and his roughnes of maners is iustly & worthilie reproued of Dio­nys. Halicarnastaus Dionys. Halicarnast. lib. 8. Cato was both by nature [Page] and profession, whom for his bitter austeritie Erasmus condemnethErasmus in Encom. mo [...]ae.. And surely I thinke that such rugged behauiour doth relish harsh­ly, and is sometimes vnpleasant to them who by naturall inclination do fauour it. Heare therefore a Stoike dispraysing a Stoike. Cu. Piso (sayth Seneca) fuit a multis vitijs inte­ger, sed prauus, & cui placebat pro constantia rigor Senec. lib. 1. de ira. Cu. Piso was free from many faultes, but yet a froward man, and was delighted with stifnes of minde in stead of constancie. Florus hath noted the currishnes of Romulus with a perpetuall blot of infamie, Romulus ob asperitatem morum a Senatu discerptus est Flor. lib. 1. histor.. Romulus for the roughnesse of his manners was torne in peeces of the Senate. But mild­nesse is of that sweete and delectable nature, that it pearceth the stonie harts of barbarous people, it affecteth their eyes and eares, it bendeth the most stubborne and insolent spi­rits, it findeth an easie way amongst swords, it ouercommeth wrath, and alayeth hatred.Valeri. Maxi. lib. 5. c. 1.. This I commend to the student as a prin­cipall meane to gaine fauour, loue, and good entreatie.

Of the choise which a student of the Law ought to make in his studie.
The third Chapter.

NOwe that we haue shewed what qualities are conuenient for him, who purposeth to gaine know­ledge and credite by the studie of the Law, it remaineth to giue him some taste of that course which in pursuing his studie hee may not vnprofitably obserue. For though the way were plaine, yet to them that know it not, it is harde and difficulte. And as the first yoake is to the young Steere heauie, not because hee is not able to beare it, but be­cause he is vnacquainted with the carying of it, so yong Students though they be in age and capacitie mature and perfit, yet because they aduenture vpon a new enterprise where­of they neuer had triall, they are somewhat troubled at the first: yet in continuance of time, by labour and some direction of Vete­ranes in the Art, they pearce through the thor­nie fence or barre of these great difficulties: but heere let the Student take courage vnto him, and when the doore is opened, let him [Page] not doubt to enter. As hee must not neglect time, which is a consuming treasure, so hee must make distinct choice of it, least omitting better opportunities, he doe cast him selfe in­to the straites of time and necessities, where­by he shall finde much incombrance, and his proceedinges shall be crossed by many inter­ruptions. And surely as in all matters of mo­ment, the place where a thing ought to be done is greatly to be regarded: so likewise the time wherein it is to be done. For the turning of all temporall affaires doth depende vpon these two hynges, and these circumstances doe ei­ther make or marre the substance of our acti­ons. It hath bin questioned of diuerse whe­ther the morning or the night be more conue­nient time for the studie of the Lawe, which because it is no moderne doubt, but either part hath had fauorers and patrons in all ages, and to the end that by some clerenes of reason the truth of this matter may appeare, I will be­stowe some paines in the opening of this point.

Marsilius Ficinus a man of excellent lear­ning and iudgment doth by fiue reasons proue that a man should rather rise in the morning to studie, then watch in the night.Marsilius Ficinus lib. de vita sana. c. 7. His first reason is borrowed of the Astrologers, which he doth not greatly vrge, because he had smal regarde of their vaine speculations: but ad­mitting [Page 18] that they say to be true, he thus rea­soneth: there be three planets which be verie fauorable to Students in the course of their studies. Sol, Venus, and Mercury, all which in the night are most remote from our Hemis­pheere, and goe into the twelfth house of the heauens, which is called the prison, towarde the West. His second reason is this. The spirits of our bodies doe followe the state and disposition of the aire. Now in the morning, when the Sunne riseth, the aire is subtilized and made rhinne, pure, and free from al grosse vapours. But in the night time it is thickned, and corrupted with contagious exhalations, which possessing the sences, doe pierce into the braine. Thirdly, the day was made at the first, for labour, and the night for rest, (and therefore it is said in the 104. Psalme. Thou makest darkenes and it is night, where­in all the beastes of the Forest creepe forth, when the Sun ryseth, they retire and couch in their dennes. Then goeth man foorth to his labour, vntill the euening.) And whilest the Sunne holdeth and conteineth his race in our Hemispheere, with his beames he doth o­pen the poares and passages of our bodies, and from the center, to the circumference of the same, he doth enlarge the humors and the Spirites which maketh vs more apt to la­bour and studie: but when hee departeth [Page] from vs then all these thinges are bound and straitned, and then we are driuen and prouo­ked to sleepe. Fourthly, it is verie healthfull vnto vs to vse labour or studie in the mor­ning, which if it should be in the night the spi­rits being greatly wasted and consumed by the motion in the day-time, the bodie becom­meth weake, and so is vtterly vnfit for any kinde of labour. And he that giueth himselfe at that time to studie, causeth the Spirits to flie vp into the head, and they being so dis­tracted, cannot yeelde sufficient seruice ey­ther to the head or to the Stomache. Fiftely if a man studie soone after supper, the nou­rishment is resolued into grosse vapors which doe fill the bodie and are verie noisome obstu­patiues to the senses. For the meate being destitute of heate and spirit, doth waxe rawe and doth putrifie in the stomacke. So that the braine is offended and our studie greatlie hindred and impeached. It may be added for a sixt reason, if any thing may be added to Fici­nus. The spirits wherein all our agillitie and dexteritie doth consiste, by which the braine doth worke, are together with the other parts of the bodie refreshed and strengthened. So that in the morning they must needes be more seruiceable then at night. Seuently, the phan­tasie or imaginatiue part of the Soule which helpeth greatly in studie, and principally in [Page] the studie of the Law, is in the night time confounded and obscured. Lastly the bodie in the night time waxeth more dulle, so that the minde cannot vse it as a conuenient instru­ment. For when the stomacke is full and stuf­fed with meate, the thicke aire being round a­bout vs, stopping the poores, the great store and abundance of humors is caried, as Aristo­tle saithLib. de som­no & vigil. c. 3. to the head, where it sticketh for a time, and layeth as it were a lumpe of leade vpon the braine, which maketh vs drowsie and proane to sleepe: then it discendeth by steppes or degrees, and comming into the o­ther parts doth ingender sleepe. And it is the opinion of a learned Phisition,Lemnius lib. 1. de com­plexion. c. 9 that the nightlie studie is vnseasonable, & that it wea­rieth and weakneth Students, making them leane and exhausting their bodies. For by late watchinges their vitall spirits through too much intension are weakened, and their na­tiue humiditie dried vp. Demosthenes did stu­die much by candle light, and therfore his ora­tions were said to smell of the Lampe: but he did not begin to studie till the first entrance of the morning, and herein he did endeuor to ex­cel euerie man. But whosoeuer will followe Demosthenes in this, had need to be well adui­sed of the strength and constitution of his body and to examin, ‘Quid valeāt humeri ferre, et quid ferre recusent.’ [Page] For nature must not be oppressed, but mea­sure and meane must bee vsed, least the sto­macke being made by too much fatigation vnable to digest the meate receiued, the poares of the bodie bee cleane worne out and extin­guished. The whole Senate of Phisitions doe call the morning howers, the golden how­ers, in regarde that the bodie is then in best temper. This may suffice to perswade, that the morning is more fit for all kinde of stu­die in generall, and by consequent for the studie of the Lawe. I hath bin prooued by probable reasons, and by aucthoritie of wise men. If this will not serue, heare the voice of wisedome her selfe. I loue them that loue mee, and they that seeke mee earely shall finde mee. Prouer. c. 8. ver. 17. I haue dwelt the lon­ger in this question, because it is very expe­dient for a Student, to know the best time of his studie, which if it bee vsed in season, may prosper, and take good effect: otherwise his labour may bee vnprofitable God (saith) Solomon hath made all things good in their time.Ecclesi. c. 3. And Ecclesiasticus woulde haue e­uerie man to obserue time.Ecclesi. c. 4. This there­fore I will noe longer handle, being a mat­ter plaine, but will satisfie the Student in other difficulties, which are more frequent & doubtfull, and are occasions, that many which doe enter into this studie doe breake off their [Page 20] course, and bid the Law farewell. The bookes of Law, say they, are not pleasant to reade, the wordes or termes are harshe and obscure, the stile no whit delightfull, the methode none at all. It is a science void of all proper definiti­ons, artificial diuisions, and formall reasons. To aunswere this cauil, (for I cannot blainch it whiter.) I will vse a two-folde manner of confirmation, and will shew that either the Lawe hath those thinges which they denie vnto it, or if it doe want them, it needeth them not. The writings of wise and graue common weale men learned in the Lawe are not to be censured by Grammarians, and Rhe­toricians, who make a gallant glosse of Cly­temnestraes mules, Alexanders horse, and such friuilous vanities. For their studie was farre different being for the generall good and com­modious gouernement of the common weale. And if any man reprooue them for want of sharpenes of inuention, and finenes of witt, let him be well aduised, and consider the sub­stance of their workes, and he shall find, that they caried Mercurie in their braine, and not on their tongue, and that they wanttd not wisdome, though they were defectiue in Rhe­toricke, which not to haue ioined with wise­dome, is so far from fault, that if they had con­ioined it they had cōmitted a fault, for who wil not dispraise & detest curled haire, & paynting [Page] of the face in an aged Matron. And in their writinges wherein their chiefe purpose and addresse was, to search out the truth of doubt­full matters and to deliuer it to posteritie, there could be nothing worse, then a curious kind of stile, which is vsed commonly of them, that seeke to flatter & to dissemble, and to be­witch with a familiar kind of perswasion the common people, with whom such flowers are of more accompt, then substanciall fruit. All kinde of things is not conuenient for all sorts of men. Rethoricke I graunt is a pleasant thing, and full of delite. But in professors of grauitie, neither comely nor commenda­ble. Who would not allowe a tripping gate, nimble handes, glauncing eyes in a Stage­plaier or dauncer. But in an auncient Citi­zen, or graue Philosopher, who would not dislike them, blame them, abhorre them. If we see a young Damesell pleasant and talka­tiue, we doe not reproue it in her, but if we finde that in a Matron, wee loath and con­demne it. And truely from the purpose and practise of graue men, there shoulde bee no­thing more different, then that which sauo­reth of too much daintinesse or curiosity. Al­cibiades his shooe is not fit for Socrates his foote, and it is not conuenient for graue men to celebrate the feast of Bacchus in the Tem­ple of Vesta: there is great distance betwixt [Page 21] the style of the Courtier, and the professor of the Law: For if the Courtier should neglect deli­cate speech, he should be no good Courtier: so if the professor of the Law should affect it, he should not speake like a Lawier. If Pythago­ras could haue lyued without meate, he would not haue eaten so much as herbes, and if he could haue expressed his meaning by signes or gesture, or by any other meane then speech, he would neuer haue spoken, so loath was he to offend in superfluitie: Therefore the writers of the Law are not to be reprooued for doing that, which if they had done they might iusty haue bin reprooued. Cicero when he treateth of matters of Law, speaketh like a Lawyer, and a Lawyer must speake as the Law doth speake: Therefore Baro in Epist. ad Com. Iust. saith well, the wri­ters of the Law would not haue left to poste­ritie, so many Law-bookes, if they had affected a choice phrase of speach. And surely if when the Latine tongue did most florish, the Caesars and Cicero him selfe, did not vse any gorgeous and fyled kind of speech in matters of Law, shall we desire it of Bartolus, Bracton, Britton, and Glanuill, when eloquence was in the Ec­clipse or wayne, & exceedingly decayed. Varro saith, that by the diuerse mixtures of people & nations, olde wordes grow out of vse, and are changed, and new do take place:Varro lib. 4. de lingua la­tin. How can it then be, but that the Common Law should [Page] haue harsh, obscure, difficult, & strange tearmes by the commixtion of the seueral languages of the Saxons, Danes, and Normans, the authors of the same. Polybius reporteth, that there was such alteration of the Romane language soone after the expulsion of their king, vntil his time, that they which were most skilfull of antiqui­tie could hardly vnderstand a great part of the wordsPolybius lib. 3. hystor. which doubtles was a great impeach­ment to learning and knowledge. If the re­ceiued wordes of the Law should be altered, it may well be presumed that many auncient bookes of the Ciuill law, & the old yeare bookes would in short time, be hardly vnderstood: And I am fully perswaded, that if the auncient Tearmes of the Law should be changed for more polite and familiar nouelties, the new tearmes would be nothing so emphaticall and significant as the olde. The wordes of the law may be compared to certaine Images called Sileni Alcibiadis, whose outward feature was deformed & ouglie, but within they were full of iewels & precious stones: so the wordes of the Law, though they be rude in sound, yet are they preignant in sense. But some perhaps will say mine eares cannot tollerate such an vnpleasant sound and so confused a style, O delicate fellow, when you go to the Theater or dauncing Schoole repose your selfe wholy in your eares, but when you come to heare mat­ters [Page 22] of weight handled & discussed, rest not vp­on your senses, but vpon your mind & vnder­standing. Alcibiades was more moued by the naked speech of Socrates, then by the laboured eloquence of Pericles: But this Rhetoritian wil replie: I confesse the Law to be of it selfe a re­uerend & excellent thing: but it would be no whit worse, if it were more finely and politely deliuered. Who wil deny that which is comely of it selfe, to be made more comely, if other thinges be added to adorne it? To aunswere this briefly and plainly, many things there be to which if you should adde any other thing, you should take away their grace and beawtie. They be of their owne nature in so good estate, that you can not change them, but you must needs make them worse: A Tombe or pillar of marble, if it should be painted with any colour, should lose the former grace, & be a great deale worse: & a beawtifull face is often disgraced, by a needles ointment, & so it is of other things which of them selues are fayre & comely: the thing which is added hydeth that which it fin­deth, & sheweth that which it bringeth: & these thinges which ar handled in the law are not a­dorned by the varnishing of art, but are obscu­red by it. And it is not conueniēt in such a seri­ous matter to dally with tropes & figures, nor to riot with superabundāce of words, nor to flo­rish wt eloquēce & diaperd phrases: But yet he [Page] will further obiect, Though it do not belong to the professors of the Law to speake and write figuratiuely; yet surely it behoueth them to speake and write in good congruitie, which notwithstanding they do not. I would gladly know what congruitie it is which Cu­riositie doth require: The fine Rhetorician wil say, absurda consuetudo disrumpenda est: The Lawyer, he will say, vsus contra rationem an­nullandus est, he will say that this is not Ro­maine latine, it is most true: therefore (will he conclude) it is not well spoken, nor congrue, the argument halteth. The Moscouite will speak of a thing after one sort: the Fleming af­ter an other sort will vtter the same thing: neither of them speake in Latine, but in their owne language: do they not therefore speake right? yes, they speake right and congrue in their owne language, and so do the Lawyers in their owne dialect and language proper to their Art. Doth any man thinke that these wordes, Bellum, Exul, Sylua, Proscriptio, ma­nus iniectio, were vnknowen to the auncient writers of the Law? Yet sometime they doe not vse these, but in stead of them they say, Guerra, Bannitus, Boscus, Attinctura, Arrestū. But it is conueniēt that they should vse these latter wordes, being proper to their Art or sci­ence. Neither is it meete that they should change them for the wordes of a strange lan­guage. [Page 23] Wherefore Scaliger doth vpon good cause dispraise the Graetians, because they doe expresse things merely forraigne and external by wordes of their owne Idiome: and com­mendeth the Romanes, because they did apply forraigne wordes to forraigne matters.Iuli. Scaliger in exercitati­on. And the common law being deriued from the Nor­mans, and other nations, doth conueniently retaine the words of the first Inuentors. And because amongest Lawyers Latine wordes be vsed many times in an other sence then they are vulgarly and commonly taken, it is not good to haue the interpretation of such words from any other then the Lawyers themselues. And though the Grammarians and Antiquaries do in the Etymologicall interpretation of wordes excell: yet the writers of the Law in the Analogical interpretation of such Latine wordes as do belong to their art do farr sur­passe them. I do not think any exquisite skill of the Latine tongue to be necessarie in [...] Lawyer: but hold it sufficient if he know so much thereof, and in such maner, as the com­mon sort of men, which are conuersant in the reading of Latine bookes. And Plato hath a good saying to this purpose, that these things ought of necessitie to be knowen, whereof if a man should be ignorant, he should be said to be shallowPlato lib. 7. de Legi. and superficiall. So much therefore of the Latine tongue ought to be knowne, as [Page] will keepe a man free from such reprochfull tearmes. The auncient Reporters and hand­lers of the Law whilest they writ of Fines, Vouchers, Remitters, Restitution, Releases, and such intricate matters, had no leasure to note the properties and rules of the La­tine tongue in Cicero, Plinie, Plautus, and Varro: they inquired not which was good La­tine, but what was good Law: But they were wise in their Iudgements, circumspect in their aduise, sharpe witted in their argu­ments, graue in their speech, subtill in their questions, cunning in their resolutions: they were excellently instructed to distinguish of ambiguous thinges by most wittie diuersi­ties, to open and to argue harde and enig­maticall cases by sound and inuincible rea­sons, to confute that which was false, and confirme that which was true. And whereas they are impeached for the want of good and proper definitions, let me aske of these strict Logicians, what a definition is? I thinke they will say that it is a briefe and plaine declaration of the substance of a thing: and be there none such in the Law? surely many: but they will haue ti to consist of the pro­per genus and the proper difference, as they tearme it, wythout adding any thing els: But it is sufficient if it expresse the nature [Page 24] of the thing, whereunto it is applied. May May not these be admitted for good definiti­ons, A Fayre is a great Market: a Market is a little Faire: a village is a multitude of houses: a Countie is a multitude of villages, Do not these sufficiētly expresse the nature of a Faire, Market, Village, and Countie: yet if they should be tried by the touchstone of the Logici­ans, they wruld be vtterly reiected as not cur­rant. Some do spend a whole decade of howers in doing nothing els, then seeking out the pro­per genus and difference of one onely thing, and when they haue done, they are scarsely so wise as they were before, they may say of them selues as Gentilis speaketh of them ve­rie fitly: Confidentia astra petimus, ruimus in praecipitia. Abberie. Gentilis li. 4. de Iur. inter [...]p. Their diuisions like wise are re­prooued, because they doe not flow from the essence of the thing diuided: Yet it is suffici­ent if they doe briefely diuide a thing into his particulers. Who can disallow of this diuision vsed in the Law, whereby all causes are said to be eyther criminall, or pecuniarie: none but such as will finde a knot in a bulrushe. Againe, they say their reasons are not artifi­cially concluded: Surely, it is not for any man, vnlesse he bee in the Schooles to tye himselfe to a precise kinde of syllogysmall logike: But if it go to the end of the contro­uersie, it is sufficient, and that is the opinion [Page] of Alciat. Alciat. lib. vlt. parerg. c. vltim. Their Methode is amongest other thinges reproued, or rather their want of Me­thode, which exception wanteth trueth. All bookes written of the Law may be reduced to these fower heades: either they are Historical, as the yeare Bookes of the Common Law: and Zasius his counsailes in the Ciuill law, in which no Methode is requisite, but it is suffi­cient to report the thinges done, and how they were done: or explanatory, as Mast. Stam­ford his Treatise of the Prerogatiue, and the discourses of diuers Glossographers, & Com­mentors in the Ciuil Law, wherein no strict Methode can be obserued: For the Commen­tor must needes follow his authour euery way that he goeth: And if there be no Methode in the one, there can not iustly be any demaunde of the other. For he that vndertaketh to com­ment, or to confute, must applie himselfe wholy to the course of his authour, or the aduerse partie: And therefore Scaliger said very aptly to [...]ardanus, Sequor te non quò ducis, sed quò trahis: Iul. Scalig. in exercitati. Or els they be Miscellaneall, and in such there needeth no Methode, because things of diuerse sort, and not depending the one vpon the other are laide together: And such are the Abridgements of the Common Law, and the Pandectes of the Ciuill Law: Or els they be Monological, being of one certain sub­iect, as M. Stamford his booke intituled the [Page 25] Pleas of the Crowne, Ma. Lambards Iustice of peace, whom if any reproue for lacke of me­thode, surely his iudgment is out of order, and that excellent Booke of Albericus Gentilis, a Ciuilian De legationibus, then which I haue not seene any thing done with more plausible, artificiall, and exact methode which as it is verie hard for any to imitate, so it were to be wished, that he would in some other like trea­tife equall himselfe.

But yet an other obiection hauing more fa­uorers then the former must bee auuswered, which is that the Law is vncertaine, and that Lawyers in their opinions and arguments do greatly differ, and dissent. But here the mat­ter is greatly mistaken. For the Law it selfe, which doth consist of agreable cōclusions, and of the iudgements, awardes and opinions, to which reason and truth haue subscribed, is not vncertaine, how-be-it they which doe argue of new questions, and causes neuer heard off before, or such as for their great difficultye haue not yet bin decided, doe in argument con­tend amongst themselues: but that which mo­ueth disputation is not the obscuritie or doubt­full vnderstanding of the Law, but the qua­lities and circumstances of the persons, of the actions, and accidents, of the time, the place, the antecedents, and consequents. And though reason be opposed to reason, and circumstance [Page] to circumstance, yet the Law is neuer opposed to it selfe. And if a man will condemne an art, because the professors and practisers are di­uers in opinion, surely there is no art, nor sci­ence, which wil be free from condempnation. Goe to the Historiographers, who should re­port the truth of euerie thing, you shall finde them at great oddes: Lyuie against Polybius, Plutarche against Liuie, Sigonius against Plu­tarche, and Xiphilinus the interpreter and a­bridger of Dio against his authour. Dio re­porteth a prodigious miracle, which Xiphili­nus altereth, setting a new face vpon it, and discrediting his authour.Xiphili. in vita M. Anto. Philoso. Goe to the Gram­marians, you shall find seuen great Masters at variance about this one word Anticomarita. Eras. li. Col­loquior. in Sy­nod. Gramma. Goe to the Philosophers, there is great dis­sention and a diametrical repugnance of opi­nions amongest them: there you shall see the Parepatetikes against the Academikes, the Epicures against the Stoikes, the Cyrenaikes against the Cynikes, the Nominalles against the Reals, the Carpentarians against the Ra­mistes. Goe to the Schoole of the Phisiti­ons: you shall haue the like disagreement: Galen against Hipocrates, Auenroes against Galen, Auicenna against Auenroes, Para­celsus against them all, and Erastus against him. Will any man nowe condemne Histo­rie, Grammer, Philosophie, and Phisicke? [Page 26] If not, then it is euident, that an Art or Sci­ence is not to bee reprooued, because the writers thereof doe in opinion or argument disagree. No more is the Law to be disprai­sed, but rather to be liked for the varietie of opinions in it. For as by the collision or bea­ting together of Flint and Iron fire doth ap­peare, So the truth is disclosed and made manifest by the conflict of reasons. A man shall more easilie and discreetely iudge of thinges (saith Aristotle.) If he haue hearde the reasons on both sides contending like aduersaries. Aristot. me­taphy Sicor. 2. c. 1. But if some men be more con­tentious in points of Law, then others, that is the fault of the men, but not of the art. The knowledge of the Law (saith Cicero) is not Litigious, but the ignorance thereof. Cicer. lib. [...]. de Fi [...]. And if a man should deferre his studie of any art, or science, vntill the writers thereof did ful­ly, and vnitedly consent, It woulde bee as vaine a thing, as if a man shoulde purpose his iourney from London to Yorke, but shoulde make a vowe not to begin his iour­ney, vntill all the clockes in London shoulde strike together.

Now that I haue remoued out of the way all such obiections, as might be occasion of im­pediment, and interruption to the student, I thinke it not beside the purpose, to prescribe and commend vnto him some speciall writers [Page] of the Law, in the reading of which, he may with aduantage and ouerplus bestowe his paines.

He that frameth himselfe to the studie of the Ciuil law, may very profitably imploy his paines in reading of the Code, Nouellaes, and Pandectes, which are necessarie for the profes­sion. Of the auncient writers I thinke these are most conuenient to be read, Bartolus, Bal­dus, Paulus de castro, Philippus Decius, Alcia­tus, Zasius. Of the latter writers, Budaeus, Du­arenus, Cuiacius, Hotomannus, Donellus, and a­monge these, yea aboue these, him whom I lately named Albericus Gentilis, who by his great industrie hath quickned the dead bodie the Ciuil Law written by the auncient Ciui­lians, and hath in his learned labours expres­sed the iudgement of a great state-man: the soundnes of a deepe Philosopher, and the skill of a cunning Ciuilian: Learning in him hath shewed all her force, and he is therefore admi­rable, because he is absolute.

The common Lawe is for the most part contained in the bookes called the Annals of the Law, or yere Bookes, all which are to be read, if the student will attaine to any depthe in the Law. In them he shall see notable ar­guments well worthy of paines and conside­ration. The two late reporters are Ma. Plow­den, and Sir Iames Dyer, who by a seuerall and [Page 27] distinct kind of discourse, haue both laboured to profit posteritie. Some humors doe more fancie Plowden for his fulnes of argument, and plaine kinde of proofe: others doe more like Dyer, for his strictnes and breuity. Plow­den may be compared to Demosthenes, and Dy­er to Phocion, both excellent men, of whome Plutarche reporteth, that such things as were learnedly, wittily, copiouslie, and with admi­ration dilated, and deliuered at large by De­mosthenes, were shutte vp in fewe wordes, compendiouslie recited, and with admiration handled of Phocion.

There be certaine auncient writers of the Law, namely Bracton, Britton, and Glanuille, whom as it is not vnprofitable to reade, so to relye vpon them is dangerous: for most of that which they doe giue foorth for Law, is nowe antiquated, and abolished: their bookes are monumenta adorandae rubiginis, which bee of more reuerence then aucthoritie.

Ma. Fortescue in his writing sheweth a sharpe iudgement, and in this is exquisite, and artificiall, that where hee endeuoreth to bee plaine, he spareth not to be profound. For he writ to a King, who desired to haue intricate things plainly opened.

Ma. Littleton layde a sure foundation of the Law, and by his owne booke hath deser­ued more praise, thē many writers of note and [Page] name by their ample volumes: out of the great bookes of the Lawe hee gathered the most speciall cases, which were either gene­rally agreed vpon, or by the Court awarded to be Law, or else in all ages receiued for po­sitiue rules. For very few there be through­out his whole treatise, which may not be sig­ned with one of these three markes: his booke doubtlesse is of such singularity, that Littleton is not now the name of a Lawyer, but of the Law it selfe.

M. Fitzherbert must needes be commended for great paines, and for well contriuing that which was confusedly mingled together in many yeere Bookes: but he was more behol­den to nature, then to art, and whilest he lab [...] ­red to be iudiciall, he had no precise care of me­thodicall pointes: but as hee was in conceit slowe, so hee was in conclusion sure: and in the treatises which bee of his owne penning, hee sheweth great iudgement, sound reason, much reading, perfect experience, and in the whole conueyance of his discourses gi­ueth sufficient proofe, that hee sought ra­ther to decide then to deuise doubtful que­stions.

Mast. Brooke is more polite, and by po­pular and familiar reasons hath gained sin­guler credite, and in the facilitie and compen­dious forme of abridginge Cases hee carieth [Page 28] away the garland. But where Ma. Fitzher­bert is better vnderstood, he profiteth more, and his Abridgement hath more sinewes, though the other hath more vaines, but I am [...]oath to make them countermates, and therefore leaue the iudgement thereof to others.

In Ma, Parkins his booke be many com­mendable thinges, deliuered by a readie con­ceit, and pleasant methode: many excellent ca­ses which sauour of great reading, and good experience, his Treatise is to young Stu­dents, acceptable and preciouse, to wh [...]m his verie faultes and errours be delightfull, but it might bee wished, that hee had writ­ten with lesse sharpenesse of witte, so hee had discoursed with more depth of Iudge­ment. For hee breaketh the force of weigh­tie pointes with the shiuers of nice diuersi­ties, yet many thinges are to be allowed [...] him, many to be praised, so that the reade [...] be carefull in his choice, wherein he was too carelesse.

In Mast. Stamforde there is force and weight, and no common kinde of stile: in matter none hath gone beyonde him, in methode, none hath ouertaken him: in the order of his writing hee is smoothe, but yet sharpe, pleasant, but yet graue: famous both for Iudgement in matters of his pro­fession, and for his great skill in forraigne [Page] learning. And surely his methode may bee a Law to the writers of the Law which shall succeede him.

Ma. Rastall for his long and laborious tra­uaile in collecting matters of weight, and mo­ment, which lay dispersed, and reducing them to a conuenient forme hath deserued neuer to be forgotten. And I know not whether I may more iustly commende him for his greatnesse of knowledge, or for the largenes of his books and labours, or for his speciall care of doing things exactly.

In Ma, Theloall his Digest of writs, dili­gence and desire to profit is eminent. He ende­uored to be like M. Stamford: but he is so farre distant from the delightfull progresse of his stile, and methode, that he may seeme to haue liued in some other age a long time before Ma. Stamford. But as his strength was lesse, so his labour was equal. For in handling one title of the Law, he hath dealt so painefully, that no point can be named concerning that Title, which he hath not discussed, nay to giue him right, hath not fully discussed.

Ma. Lambards paines, learning, and Law, appeare by his bookes, which are conducted by so curious methode, and beawtified by such flowers of learning, that he may wel be forted amōgst them to whom the Law is most behol­den. His stile runneth like a tēperate streame, [Page 29] his excellent knowledge and vse of antiqui­ties argueth no small reading, and a singuler conceit: He hath bin so vniuersally beneficiall to the whole Realme, that whosoeuer despi­seth his workes, bewraieth himselfe.

M. Crompton hath taken great paines in this studie, and his bookes are in euery mans handes, which prooueth their generall allow­ance, his cases are verie profitable, and apt for the title to which they are applyed, and so compendiously collected, that a man may by them in few houres gaine great knowledge.

Certaine Rules to be ob­serued of the Student in the reading of his bookes.
The fourth Chapter.

NO actions haue good successe, which be rashly and ex abrupto vndertaken wythout direction: for where aduise faileth, there fortune is blind, and not in other cases, and it is farre greater trauaile to atchiue any matter of difficultie by selfe labour, then by the pre­scription and instruction of others: Where­fore it shall not be inconuenient to propose [Page] certaine rules, by which the Student may hold an euen course in the study of the Law.

In the vnderstanding of the Law the Stu­dent must not vary or depart from the proper sense & signification of the words, vnles therby some absurditie, inconueniēce, or vniustice may appeare: for otherwise the propertie of wordes is strictly to be maintained, & reteyned. Ther­fore let him be diligent to search out the proper sense of wordes: for as Celsus saith, Scire leges non est verba earum tenere, sed vim et proprieta­tem, Celsus li. 9. digestor. Plowd. Com­ment. 82. per Saunders. To know the Law is not to know the wordes of the law, but the force and property of the wordes: for wordes are as it were ser­uants to things, because they were first inuen­ted for the plain & perfect discription of things: for though nature do make soundes, yet indu­strie doth coyne words, without which our vn­derstanding might be contemplatiue, but not practicall: for without them the vnderstanding is in maner bound, or maimed, because without freenes of speech, and plentie of wordes it can not display it selfe, nor extend his force to the opening & discouerie of any mean matter. And as art maketh the mind to speak, so the mind or vnderstanding maketh art to write. Certaine it is, that without words a mans meaning may not be certainly knowen: Of wordes some be artificiall, & some inartificiall: Inartificiall are those which the common or vulgar sort of men [Page 30] do vse for the deliuerie & declaration of theyr intentions and meanings, seruing not for the illustrating of artes and sciences, but only for mutual conference betwixt man & man: Arti­ficiall, are these which the inuentors of artes haue deuised for acquainting the mind with the rules & mysteries of their arts, because words fitly & accomodatly vsed are the verie images and representations of thinges, which do lead the vnderstanding as it were by the hand, to the apprehension & perfect knowledge of the thinges them selues: wherefore in this respect diligence must be vsed of the Student.

2 Where the Law is obscure, that sence must be taken which is least▪ preiudiciall: for euery perfect speech of man consisteth of two thinges, of wordes, and of meaning, and when both the wordes & meaning are plaine and ma­nifest, he that doubteth of any thing is rather foolish, then curious: But when the wordes be directly repugnant to the meaning, the whole proposition or assertion is meerely voide. Obscuritie in writing or speaking, is when the sense can not be gathered, 1. by that which of the most part of men is vsu­ally done, 2. nor by that which was vsually done by him that vttered the wordes, 3. nor by the custome of the countrie, 4. nor by the common vse of speech, 5. nor by the pr [...]misses nor by the [...]quel: And therefore if a man [Page] will hyre workmen, and will couenant wyth them that he will giue them as much as other men of the same village or parish, if some giue by day iii. pence, some vi. pence, some ii. pence, the couenantor in this case shall giue but ii. pence:Guido question. 252. because in obscuris quod minimum est sequimur: Otherwise it had bin if it had bin plainly & expressely said (as much as any other man of the said village or parish.) So if a man promise vpon good consideration to giue to euery of the Canons of a Cathedrall church a quarter of Wheat euery yere, and the number of the Canons be augmented: yet the graunt is restrained to that number, which was at the time of the grant.Imo c. li­teras de res­script. 38. H. 6. 10. 39. H. 6. 6. Temp. E. 1. Common 28. & 21. E. 3. 2. per Wilby. Yet the Law doth some­time construe deuises by mediocritie:Philip. Dec. Comment. ad regul. iur. As if a man deuise to one two cuppes for his table, without expressing the mettall whereof they shall be made, they shall neither be of gold as the best mettall, nor pewter as the baser met­tall, but of Siluer as a mettall betwixt both: But that is, because euery deuise ought to be interpreted for the benefit of the deuisee, & yet as neere the meaning, & as farre from the pre­iudice of the deuisor as may be: Therefore in deuises not words but meaning is followed, & a transposing of the wordes may be vsed if the meaning require: confused thinges must be distinguished, generalitie restrained, seuered things must be conioyned, implied things must [Page 31] be explicated. But in bargaines & contractes we must not respect so much that which was meant, as that which is spoken, because bar­gaines do properly consist in facto, & therefore in matters of contract a mans will is rather gathered by his wordes, then by his meaning: for, propositum in mente retentum nihil operatur, and as the wordes do sound, so his will is to be construed: and the wordes of the contract be the substance of the contract.

3 When the opinions of the learned in the Law are repugnant the one to the other, it is the safest and best way to follow that opinion which is most agreeable to reason: for if con­trarie reasons be probable, the better of them is to be chosen, and that which is more conso­nant to Equitie: and where the reason of the Law doth faile, there the disposall of the law doth faile:li. adiger. § quamuis. de iur. patron. li. 7. P. tit. 14. c. cum cessante de appell. As of the contrary part where, the reason of the law taketh place, her the law taketh effect.l. non possunt et li. nam et ait Pedius de ll. in p. But if contrarie reasons doe seeme to be of great force, wherof the one ten­deth to a publique good, the other aymeth at a priuate aduantage, that which is for the com­mon good is more to be imbraced, fauored, & followed: for that which is good to many must needes be good to euery particuler person: and these things which are generally expedient, ar with good reason preferred before such things as do peculiarly profit.Iulian in l. ita vulnerat. § quod si quis absurde ad leg. Aquilei. But that reasō which [Page] is for the profit of a priuat man, and doth not preiudice cōmon right, may well be admitted. Publike profit may be considered after fower maners, 1. When profit doth accrue both gene­rally & particularly, as by the gouernment of Magistrates,l. i §. huius. ff. de insti. et iur. 2, when the profit is general, but not particuler: as locupletatio aerarij, the en­riching of the Treasury in Cities & Townes corporate,l. pen. c. de princip. li. 12. 3. when the profit is priuate, but yet a publike good commeth of it: as the dowry of women, and the infranchising of Citizens, 4. when it doth so profit particulerly, as that it doth not disprofit generally: g. as when we say that it is not expedient, that men should mispend their goodes, or throw them into the Sea: That reason therfore is of more force in law, which is more generally commodious.

At (que) ipsa vtilitas iusti prope mater et aequi.
Horati.

It is good therefore for the Student to fift out the reason of the Law, & that by very dili­gent & earnest search: for the reason of the law is the life & soule of the Law: Wherfore not without good cause is Bartolus reproued of the Ciuilians, Alciat. li. 1. de verb. sign. for that he denied reason to be of the essence of the Law: And surely I thinke there is no Law wholy without reason, I mean which was not grounded vpon reason at the fift making of it. Yet I will confesse that the reason of many Lawes is so obscure, and [Page 32] vncertain, that it can hardly be found out, con­ceyued, or deliuered. The Law is the inuen­tion of wise men, who would not make any thing publique without reason, though the rea­son of the Law may be hid from him, from me, and from a number of men: Neither are we to think that any Law is therefore without rea­son, because a reason therof can not be rendred: for as Cicero said well, Iniquum est quod accidit non agnoscere, si, cur id accidat, reperire nequea­mus, Cicer. in ora. ad Brut. It is an vniust thing not to acknowledg the thing which hath happened, because we cannot find out the reason, wherfore it happe­ned. It is not good to affirme that the Lawes made by wise men do want reason, because we can not discouer ye reason. But as I do not like Plato his conceit, whē he forbiddeth yong men not to inquire of the reason of the lawes:Plat. lib. 1. de leg. So to be too curious in the inquisition of it, wil be rather matter of trouble then of praise to the Students: Therfore it is a point of humility & modestie to think those things, which by graue & sage men haue bin established for law, not to be without reason, though ye reason therof can not be discerned. And that which Gentilis wit­tily speaketh of the Ciuil law, may be affirmed of the cōmon law of this realm, Rationem vbi (que) habet, sed non vbi (que) conspicuam. Alber. Gen­tilis lib. 2. Epi­stol. c. 2. Castrensis is so peremptory for ye reason of the law yt he boldly auoucheth, yt he neuer saw any law, wherof he did not see the reason.Castr. in eo § item si reip. Theodosius did ascribe [Page] such aucthoritie to the deceassed professors of the law, that he would haue their answeres in doubtful matters to haue the force & strength of a Law. And the same thing was done by Augustus, as Pomponius reporteth.li. 2. de orig. iur. But yet I could wish, as Gentilis Abberic. Gentil. lib. 3. Epistol. c. 17. & Alcitat Alciat. lib. 4. perarerg. c. 17. do require, that the aucthorities and cases of the learned writers of the Law should rather be weighed, then numbred: that is, should rather be exami­ned how they accord with reason, then how many they be in number: but if it so fall out, that two men of great iudgemēt do dissent, his argument is to be held for Law, which reason doth informe & enforce to be agreeable to the truth: For no man will intend the meaning of the Law to be, that the opinion of any man, though singuler in knowledge, should be pre­ferred before the truth: For both the Lawyer & Iudge are the ministers & dispensers of Iu­stice, & of the giftes of God, & are seruants to God him selfe: but the seruant must not do that which the Master will not permit: but neither Iustice nor God will do any thing against the truth: Therfore, neither the Lawyer nor Iudge ought to do any thing against ye truth. If Iustice should iudge according to opinion, & not according to verity, it should thē do iniury, which thing is against her nature. And though many arguments be made for the preseruing and maintayning of the rigor of Law, yet none [Page 33] of them ought so to be admitted against iustice and truth, as that occasion of iniurie may seeme thence to arise, whence right and equi­tie should proceede:l. memine­rint. c. vn. vi. li [...]. 42. coll. 9. because no reason of the lawe, no course of equitie will tollerate, that those things which haue bene conueniently introduced for the profit of men, should be a­gainst their profit with a more hard and ri­gorous interpretation restreined. For these things which be established for a certaine end, ought not to worke the contrarie.l. quod fauor▪ c. de legi▪ But some perhaps will obiect, that a Iudge ought to de­termin and a Lawyer ought to argue, accor­ding to the knowledge which he hath by the written lawe, and that is the reason and con­science of a Lawyer, as he is a Lawyer. But surely such arguments are not proofes, and such iudgements if they be not according to the truth of the thing it selfe, in reason are not sound nor maintenable. For euery proofe should be a true assertion, and euery iudge­ment the rule of truth. And how can that seeme iust according to the lawe, which ap­peareth to a mans conscience to be vniust. Surely the light of the truth in an honest mind dimmeth and obscureth all cauils and quillets: And it is a friuolous dreame to thinke, that a Lawyer hath one conscience as a Lawyer, and an other conscience as a Chri­stian. For he hath but one soule, and know­ledge [Page] of the truth, and therefore but one conscience: for conscientia is cordis scientia, and no reason will require that a lye, by any distinction shoulde bee preferred before the truth. The principall meane to enquire af­ter the truth of euery thing, is to examin of two or more contrarie reasons whether is more probable. That which is plausible to common vnderstanding is tearmed probable, and whē the words of a couenant or deuise be cleare & manifest, we follow the literall sense of thē without farther inuestigation, because in things that be certaine, and apparant, there is no place for coniecture: but whē the words be obscure, or whē some thing is omitted, least the graunt, couenaunt, or deuise do faile, we haue alwaies recourse to that which is more probable, and wee imagine that more was spoken then written, and more intended, then vttered. And it is not conuenient, that in the affaires of men, the interpretation which dependeth vpon probable coniecture should be excluded.l. non aliter. ff. de legat. 3. A thing may be probable many wayes, first,decis. Nea­pol. 44. Numb. 26. by the common vse of speech,Marius Sal­monius ad. l. omnes populi ff. de iustitia & iure. secondly, by comparing the conse­quent with the antecedent, thirdly, by the cir­cumstances of a mans actions, fourthly, by the concordance or agreement with the lawe, be­cause euery one is intended to cōforme his wil according to lawe, vnlesse the contrary be pro­ued: [Page 34] quaero. §. inter locato­rem. ff. locat. but it may be sayde, that where the words of the law do faile, the law it selfe doth faile.L. 4. §. totie [...] ff. de damn. infer. And words were inuented, that they might shew the meaning of the parties, there­fore we must not regard that which is pro­bable, but that which the words do sound.l. si repeten­di c. de condi [...]. ob causam. To this I answere, that there ought to be no departing from the words, and from the true propertie, vnlesse there bee apparant proofe of an other meaning:l. non alit [...] ff. de leg. 3. but where an other meaning doth appeare, there the toung yeeldeth to the heart, and the words do giue place to the meaning.Bal. in c. mandat. de rescript. The words onely in such case are not to be regarded, but wee must consider what was meant by the person, quantitie, qualitie, place, time, precedents, consequents, and other circum­stances. l. penult. ff. ad exhib. Alciat. in l. 1. ff. de verb. sign. And where it is sayd that if the words faile the lawe doth faile, it is true, vnlesse there bee some secret intent of the lawe to the contrarye,Tiraquell. in l. si vnquam ad verb. lib. Num. 35. C. de reuoc. donat. the ground whereof is probabilitie. And though a mans sense and meaning be declared by his words,Quintilian. lib. 7. c. 7. yet because there bee more thinges which wee thinke, then which wee speake or write, the speech of a man is not alwayes the touch­stone of the minde, but the concurrence of cir­cumstances: and though a mans words ought to be taken most strongly against him,ad. d. l. si inguam in princi. num. 54. yet they are wel to be sifted & examinedl. semper in stipulationibu [...] ff. eod. least the [Page] interpretation bee too burdenous in some case,Loriotus de reg. axiom. 105. and so vniust against the partie. A mans speech doth consist of words and mea­ning, euen as a man himselfe doth cons [...]st of bodie and soule, or to make the matter more plai [...]e, the words are but the superficies, and the intent or meaning is the substance.l. tutor peti­tus §. 1. ff. de excus. tut. And the lawe traceth the meaning of a man by the circumstances, euen as the hunter traceth the hare by the print of his foote.Bartol. in l. si quis serio coll. vltim c. de fur▪ & Cons. 275. lib 2. num. 2. Yet I would not that a mans deede or act in the countrie should be made frustrate by some Iewish or misticall interpretation: but such an intend­ment must be taken, as the words being com­pare [...] with circumstances will yeeld. For words are not by violence to be racked, but by circumstance to be ruled. And wee must al­wayes so interpret, that a mans right may be vpholden. But it may be further obiected, that in graunts and contracts, and in other priuate affaires Casus omissus habetur pro omis­so l. si commo­dissim. ff. de liber. & posthu. l. post dotem. ff. solut. mat [...]im. and the inte [...]ion or meaning of a man, which is not apparant and manifest, is as a child vnborne, which is of no account till he be brought to light.l. Vlt. c. de posth. haered. instit. Bald. ad l. 1. C. qui admit. ad bonor. post. & col. 9. For a mans speech is an externall act, which is ordained for the declaration of his inwarde meaning,l. Labeo ff. de supell. legat. and therefore words are sayd to be the limits of our meaning.Socyn consi. 4. lib. 41. Iason. Cons. 140. lib. 2. To answere directly, these words (Casus omissus &c.) are to be vnderstood [Page 35] onely in such cases where a thing is omitted, both in respect of the not expressing of it, and in respect of the not implying it. But where the lawe will vphold the meaning of the par­tie, there is no neede of words: and though words were inuented, that they might ex­presse our thoughts, yet by them onely our meaning is not signified. But there be other signesl. 3. ff. de testi. l. de mi­nore. ff. de quaest. namely, the circumstances before the acte, in the acte, and after the acte. Thus it is euident, that the best and most probable reason in the conflict of opposite arguments, is to be sought for by the Student, and how it may be found.

4 The best interpreter of the law is com­mon reason and intendement.l. si de in­terpret. ff. de ll. Wherefore if any one mans opinion do differ from common reason, let the Student auoide it. Neither are such things without cause to be altered, which haue alwayes heretofore receiued a certaine interpretation.l. minime ff. de legi. Neither is the common lawe any other thing, then a determinate or­der established and ratified by common con­sent. Wherefore Bodinus saith not well, who putteth this difference betwixt a lawe and a custome, in that a custome is accepted by the plausible agreement of the multitude, but a lawe springeth vp in a moment,Bodin. lib. 1. de repub. c. 10. and is com­maunded by the authoritie of the Rular, many times against the liking of them that are [Page] bound by it. For common lawe is that which is made and approued by common allow­ance, and therefore it is lawe, because it is commonly vsed for lawe. Wherefore Athe­naeus Athenaeus lib. 12. c. 22. andPolibyus histor. lib. 6. Polibius do vpon good ground & reason reproue the lawes of Plato, because no nation of Greece could be perswaded to vse them: but as Plato faigned lawes, so he might likewise faigne men to vse them: therefore Horace sayd rightly, Quid leges sine moribus vanae proficiunt? Lawes without vse are vaine and profit not. Horat. lib. 4. [...]arm▪ ode. 24. But here it is good for the Student to be assured of what nature & quali­tie the thing is which I call common reason or intendement, for that may seeme to offer doubt, whether we ought to ascribe common reason and opinion to the number of authors, or to the worthines of them, or to the perswa­sion of reason which doth concludenter demon­strare to the sense & vnderstāding of ye most part of men of indifferent capacitie. I would haue cōmon opiniō takē according to this last brāch.

5 The things which be odious in lawe must be restrained, & the things which be fauorable must be enlarged. Priuat customes are odious in the eie of lawe, & whatsoeuer swarueth frō common right:c. cum delect. de consuetud. l. cum quidam. ff. de lib. & posth. for the cōmon law was fra­med in fauour of publike tranquilitie, & there­fore the departure frō it must needs be accoun­ted odious.Aymo consil. 170. nu. 3. Baldus in l. non possunt ff. de legib. The lawe is more proane to ac­quite, [Page 36] then to condemne:l. Arrianus. ff. de oblig. & act. and because it is better with the restraint of an odious constitu­tion, to absolue one that is giltie, then with the enlarging & amplifying of it to condemne one that is innocent,l. absentem. ff. de paenis. therefore there is nothing that requireth more diligence & consideration, then to deale warily where there is great dan­ger to any partie, that a man may not rashly determin of a mans credit, bloud, or life: sith these things be of that qualitie, that being once lost, they cā neuer be repaired.cap. vbi maius sup. de elect. lib. 6. But to know whether things be fauorable or odious, the things are not to be cōsidered in thēselues, but theffects which proceed of thē Alciat. ad l. 2. in num. 44. de verb. oblig. as dower is fauored in respect of the widowhood, & de­solatenes of the woman whose husband is de­ceassed.L. 1. ff. solut. matrim.

6 It must likewise be obserued, that when a thing is forbidden, all things that follow therof are likewise forbidden: as on the con­trary part when a thing is granted, all things are implicatiuely graunted with it, whereby we may attaine to the thing graunted:l. ad rem mobil. ff. de procur. l. 2. ff. de iurisd. om. iud. Temps E. 1. Grauntes. 41. and if the beginning of things be forbidden, the end also is forbidden according to the rule, Qui meditatur principiū meditatur etiā finem, bald. ad L. quamuis. c. de fide comm. and things are principally forbidden for the end to which they are directed. But here a di­stinction is to be vsed, for where the consequēt is of it self auaileable, and doth not necessarily [Page] depend vpon the power and vertue of the an­tecedent, it may be of force, though the ante­cedent be forbidden,Baldus ad d. l. non dubi. in 13. oppositione for then it is without the cause of the prohibition: but if it depend essentially vpon the antecedent, it is other­wise. For the better vnderstanding of this rule, it is good to be seene what may properly be sayd a principall thing, and what an acces­sorie. That is principall which is of greatest moment: an accessorie thing is that, which by consequence goeth with the principall. If the Queene graunt vnto one Cognitionem causae, her highnes graunteth vnto him the hearing of the parties, and the examination of witnesses. So the margarites or pretious stones that be in gold or siluer, do yeeld vnto it, and do passe with it, because they are but the ornaments thereof, and were applied to the decking and beawtifying of it. An acces­sorie briefely may be taken to be that, which is adioyned to a thing, and is lesse then the thing to which it is annexed, either in sub­stance or in valew, or in respect both of sub­stance and valew.

7 The validitie of an act must be especial­ly fauored, vnlesse there be a manifest nulli­tie in the proceeding.l. quoties ff. de verb. oblig. Therefore whensoe­uer the nullitie of an act shall appeare by the proceeding of the parties, which is sayd to be euident, and notorious and excluding all [Page 37] cauill,Bart. in l. 3. parag. con­demnat. ff. de re iud. it is to be held as voyd, but if the nul­litie proposed do not so appeare, but requireth a deeper search, because many times error is obiected that the Sute may be protracted, there consideration must bee vsed. But in doubtfull causes interpretation must bee so made, that the acte may rather stand then fall. But the obiection of error is alway to be fa­uored, when the error assigned doth concerne the figure & solemnitie of iudgement.9. E. 4. 3. gloss. in verb. defen­siones in de saepe de verb. figu. And therefore he that will dispute of the validitie of an award or iudgement, ought to be warie and carefull, that he put the axe to the roote, and that he first examin the iurisdiction and power of the Iudge, because that being the basis and foundation of the iudgement, if that fall, the rest cannot stand. It is therefore to be cōsidered whether he were a competēt Iudge by reason of the cause, of the parties, of the time, and the place. For by reason of the sute or cause, a Iudge may be incompetent, as if the cause belong to a meere iurisdiction, and the Iudge be only a Magistrate in a certaine corporation: or if the cause be ciuill, and the Iudge who taketh connusans of it be Iudge of Gaole deliuerie, or if the Iudge be secular, and the cause Ecclesiasticall, or if the Iudge haue some other limited iurisdiction, and he taketh connusans of a cause not cōprehended within the lists & bounds of his commission, [Page] he may be incompetent also by reason of the place, as if he iudge of causes without his ter­ritorie, or circuite, or els within his territorie, but yet in a place exempted, he may be incom­petent by reason of the time, as if he did iudge before he had his commission, or after his com­mission expired, or if his iurisdiction were sus­pended, as at festiuall times, which wee call dies non iuridicos, or at such a time, when a greater Iudge was present: or if the Iudge were called to a higher place, or if he were for­bidden to exercise his power. And also the per­son & qualitie of the partie is to be considered, because some by reason of a legall impedimēt are vncapeable of the aduantidge of lawe, as these that are outlawed, excommunicate, and out of the Queenes protection. And there can be no fast roote or sure ground of their procee­dings, for such are to be denied audience, be­cause their offence & default ought not to find patronage. Likewise there may be a default in ye party making an Attorney, as if he could not make an Attorney in that cause, or else by reason of the Attorney himselfe, as if he be vn­capeable of such an office as being not lawful­by aucthorised. But if a iurisdiction be giuen and graunted to one, it is to be intended to be giuen him accumulatiue, & non priuatiue, ra­ther to enlarge, then to diminish his power. And though a Iudge of the Gaole deliuery [Page 38] being appointed and ordained by commission to the hearing of causes criminall, may not principally inquire of causes ciuill and pecu­niarie, because it is a Iurisdiction limitted, yet incidently and as it were by the way, for the better examining of capitall crimes, hee may take notice of such things. But if the processe and iudgement bee framed against one, who is not onely not subiect to his iuris­diction, but is also free from the iurisdiction of euery man liuing, as if the partie be dead, concerning whome, no acte can be conceiued or vpheld, the Iudgement is voide.

Thus haue I shewed to the Student in so generall manner as the order of this treatise doth require, and likewise so particularly, as to his vnderstanding may be playne and manifest, what course hee ought to take in examining the cases, reasons, opinions, argu­ments, proceedings, and iudgements, where­of he shall finde great store and aboundance in his bookes. Now I will by fauour discend to describe and delineate vnto him briefely (for it is a matter which may be handled plainely and in fewe wordes) what course hee ought to obserue in the exercise of his studie.

Of the exercise and con­ference which the Student of the lawe ought to vse.
The fifth Chapter.

EVery art and knowledge produ­ceth effects, and like a good wea­pon is vnsheathed & vsed in time conuenient, otherwise it would be quickly ouercast and eaten with rust. But there is nothing that with so much brightnes and glory illustrateth our knowledge, as the orderly and iudiciall applying and accom­modating of that which we haue read. For as a man knoweth by his bookes, so he is known by his practise, and by that which he is able to performe in the faculty which he professeth, and hee which knoweth to himselfe is not knowne of other men. Wherefore I suppose it a thing of exceeding moment for the Stu­dent, to demeane himselfe well in his confe­rence and exercise, least the multitude of howers which he hath spent, do slip from him [Page 39] without vse, as the sand falleth out of the howre-glasse, when no man seeth or min­deth it.

1 The student of the lawe ought to haue great regard of his speech, and that he deliuer his opinion or argument in conuenient and orderly sort, not after a rude confused and impolite manner, and hee who is not onely wise but eloquent, is without comparison the best in all professions which consist in practise and in the forme of speech. There­fore parents and tutors in the Uniuersity should haue principall regard, that he who is to addresse himselfe to the study of the lawe, may be fitt with a plausible grace to discourse and dispute, and euen in the prime of our yeares this care must be had. For by nature we hold that fast which in our ten­der yeares we conceiue, and the worse sort of things do stedfastly abide in vs, the bet­ter is soone turned to worse, but in this mat­ter it is good to follow the precepts of such as be neyther too curious nor too ignorant: for there is nothing more like a may-game then these vaineglorious persons, who haue decked themselues with a false perswasion of knowledge. To the Student of the lawe I doe therefore thinke this course necessary, because he must liue in great celebritie in [Page] the assembly of the people, and in the mid­dest of the common weale. Let him there­fore enure himselfe from his youth, to fre­quent assemblyes: let him not be afrayde of men, nor appalled or tymerous through a shadowed kinde of life, least when hee shoulde make vse of hys studye, hys eyes das [...]e at mid-day, and all thinges bee newe vnto hym, who seeketh that in hymselfe, which is to bee done and performed in a multitude: Yet I woulde not haue hym too curious and deynty in hys speeche, for wee must vse wordes as wee vse coyne, those which be common and currant. And it is a great errour for a man to estrange him­selfe from the common vse of speach, and to exceeding precisenesse in wordes, and stile, doth quench the heate of our inuen­tion, and brideleth the course of our wittes. Yet it is commendable to haue in our dis­courses both good wordes, and good mat­ter. For Cicero dyd not fight with armour of proofe onely, but wyth bright-shining harnesse, when hee did not onely gayne the admiration of the Romanes, but theyr ac­clamation also and applause. But let good wordes conteyne in them good matter, that the Argument or discourse may not shyne as it were by oyle and oyntment but by [Page 40] bloud and complexion. It is a feauer-like payne to endure a mans speech, loadned with superfluous wordes. In all thynges decorum must be obserued, least that which wee saye, doe turne to laughter, or loa­thing, and purchase the name of folly, a meane must bee kept, least our speach bee drye and faynt, or else too copious, and full of circumstaunces: yet it is better for the inuention to bee abundaunt and copious, then to bee leane and poore. Wordes if they bee not vested with the substaunce of thynges, are of no force: Rhetoricke which is the Artificer of perswasion, if it bee se­uered from circumstaunces, and raunge without learning by a facile kinde of sway. It is called Atechina. If it bee applyed to the destruction of good men, it is tearmed Cacotechina, but if it bee bestowed in vayne and superfluous matters, it may bee tear­med Mataeotechina, a friuolous labour, and a tryflyng arte. There is nothing whiche more beawtifieth a mans speeche, then an apte diuision or partition of the thynges which bee handled, whiche doth ease the mynde of the hearer, prepareth the mynde of the vnderstander, and refresheth the memorye, and (as Iustinian sayeth) the [Page] obscurytie which doth ryse of a confused text, is by separation and diuision dispersed and remoued.Iustin. in §. alio. insti. quib. modis tes. infirm. & in §. sed ne in pri­mis de leg. And as the diuision of fields doth make the tillage more plentifull and sightly, so doth partition in the handling of causes, adorne and garnish them. These things may be aptly deuided which haue a seperate reason, and are sorted to diuers endes.

2 Students shall not do amisse, if at certaine times they meete amongst them­selues, and do propose such things as they haue read or [...]eard by that meane to be as­sured of the opinion of others in such mat­ters. By this course it may be brought to passe, that euery one may both better vn­derstand, and more firmely reteine in me­mory the thinges which hee hath read or heard, and these things which be to good purpose vttered of others, hee may enioy as his owne. For priuate conference there is no time amisse; Adrianus the Emperour (as Dio reporteth) did handle and discusse pointes of lawe at dynner tyme. M. Cat [...] euen in the Court whiles the Senate was assembling, did busie himselfe in reading: and surely, he that hath a minde to learne, may learne at euery place, and at euery tyme.

[Page 41] 3 Gentlemen students of the Law ought by domestical Moots to exercise and conforme themselues to greater & waightier attempts, for it is a point of warlike policy, as appeareth by Vegetius to traine young Souldiours by sleight and smal skirmishes for more valerous and haughtie proceedinges,Veget. lib. 1. de re mi­litari. for such a sha­dowed kind of contention doth open the way, and giue courage vnto them to argue matters in publique place and Courts of Recorde, and it will not be amisse, sometimes to reason toge­ther, before men of more reading and grea­ter iudgement which may friendly admonish them, and if they erre reduce them into the right way, It is good to bring such matters into question as be disputable, & may deserue argument, for it were a vaine thing to make a doubt of that which is plaine and manifest, as whether a rent or annui [...]ie ought to be paid to a dead man, or whether a man may commit an offence against the Law without punishment and such like, wherein if a man should a [...]ke a­ny mans opinion, hee might perhaps receiue such aunswere as Labio did of Iubentius Cel­sus: Aut non intellig [...] quid sit de quo me consu­lis, aut valde stulta est consultatio tua. l. Domitins Labio de testā. It is euident that one Law may with good proba­bility heare seuerall interpretations, but that sence is most to be imbraced which doth take away the occasion of doubting, the way to re­moue [Page] doubt, is to examine well the reasons of the contrary part, wherefore Baldus saith well.

Ferro aperire viam qui per contraria transit. In l. precib. c. de impub. And to loose doubts is to find out the truth as Aristotle saith,Arist. Me­taphys. 3. but often conference and pri­uate debating of points of Law, is the foun­taine and originall of exceeding profit, for by it the wit, the memory and the tongue, are greatly furthered and holpen, and a man is made more ready & bold for publike matters, and the truth which is the marke of our study, doth more easily appeare. Wherefore it is not vnfitly said of Marcellus the lawier, that euery art by continual exercise doth receiue increase. In l. legatis §. ornatri. de leg. 3. The wit if it be somewhat dull is by con­ference more sharpened, if it be ripe and ready it is a great deale more furthered, and to the memory nothing can be more profitable, which of it selfe is so brittle and tender, that vnlesse it be renewed with continual exercise, it will easily perish. And in vaine shall a man passe a­way the night without s [...]epe, or the day with­out recreation, in vaine shall he run ouer the volumes of the Law, in vaine shall hee inquire after the opinions of the learned, vnles his me­mory do represent and readily offer vnto him these things being with great labor followed and atchiued when time and occasion shall re­quire, I neede not shew how much it doth be­nefit [Page 42] & polish the tongue: for conference is the proper exercise of the tongue. I said that bold­nes is procured by the frequent meeting and communication of students, & I wil auow that which I haue auerred, for as by degrees a man doth conuerse and talke with his companions and such as be better then himselfe, so by de­grees he groweth bolder, which may bee ga­thered by that Fable of Esope: The Fox did by chance mete the Lyon whom he neuer saw be­fore, & was so affrighted that his senses were almost lost, when he saw him the second time, he feared likewise, but nothing so much as be­fore, but when he saw him the third time, hee was so little afraid, that he went vnto him and talked with him. I said further that it was the high way to discerne the truth of euery thing, and therefore Archadius saieth of Herennius Modestinus that by much disputation he at­teined to excellent iudgement,In. l. mune [...]. §. mista. de muneri. & ho­nori. wherfore let the student often resort vnto his fellow stu­dents, and amongst them let him be well adui­sed of his choise.

4 After priuate and home exercise, publike exercise must ensue, which must not be rashly done, but there must be both maturitie of yeres and aduise, least the vnripe braine doe make the forehead to blush, and in stead of praise we reape contempt. Surely it is the beginning and foundation of impudency, for a man to [Page] because the opening of the dore, and the hol­ding of the Candle was not parcel of the con­sūmation of the act, and so was the Law taken 3. of Queene Elizabeth. 3. Eliz. 186. Dyer. An adulterer did counsell the woman to murder the child when it should bee borne, the child was borne and murdered by the Midwife in presence of the Mother, and by her commandment, The Mo­ther & the Midwife be principal, and the Ad­ulterer but accessary, because his counsel was before the birth, and he was not cooperant in the act, but because the force of his perswasi­on and counsell did continue vntill the murder it being not countermanded by him, therefore he was held and adiudged an accessarie, but whether in the same case if the woman be ad­mitted to be accessary, whether she should bee a traitresse or no, because the principall is no traytour, is a question which may well beare argument on the one side vpon the letter of the Law, and on the other side vpon the mea­ning of the Law, but of this matter I haue giuen the Student a sufficient taste, and my meaning was in this treatise rather to drawe the lineaments of things, then to discusse them to the full. These may serue to prepare the minde of the Student to handle such things as may seeme to be contradictory in the body of the Law.

6 That the Student may with more ease [Page 44] compas and accomplish the things precedent, it is good for him to haue great care of pre­seruing and continuing his memory, and ther­fore it is a profitable course vnder titles to di­gest the cases of the Lawe, into which they may transfer such things as they haue either heard or read, neither is it safe to trust to other mens Abridgements which are little auailea­ble to such as haue read little, but that which we by our owne sweat and labor do gaine, we do firmely retaine, and in it we do principally delight, and I am perswaded there hath neuer bin any learned in the Law, and iudicial, who hath not made a collection of his owne, though he hath not neglected the Abridgements of o­thers, The memory is specially to be helped and increased of the Student, for though it be the gift of nature, yet by industry it becom­meth more excellent. For the integrity of the memory it is good to haue sound health & conuenient digestion of the meate, and a mind free from all other thoughtes, It helpeth it much to make good diuisions, for he that deui­deth things aright, can neuer erre in the order of things. There is nothing surely which doth either more growe by diligence or by negli­gence more decay then memory, It is not good trusting to a suddeine memorie, but a nights rest will adde great strength vnto it. [Page] Of what force memory is by nature and labor Themistocles may witnes, who in one yeares space did speake the Persian language verie perfectly and Mithridates who did well vn­derstande the two and twentie languages of the nations whom he did gouerne. M. Cras­sus whiles he was President of Asia attained to the fiue differences of the Greeke tongue. Cyrus did remember the names of all his Sol­diors who were in his Campe. And if memory be necessarie for any science, surely to the pro­fession of the Law, it is of weightie impor­tance, which because it doth pursue acciden­tia, and infinita requireth no helpe of nature so much as memorie, for the vnderstanding con­ueyeth the cases to that treasury; out of which it draweth them as often as vse and oportuni­tie doth demande. But if the vnderstanding be good, and the memorie nought, a man shall be a Lawyer to day and none to morow. Where­fore in this part the Student must excell, and that he may excell, he must labor, and that hee may labor, he must haue health, which I wish vnto him.

That the vnderstanding of the Student ought to be proportionable to the intende­ment of the Law.
The sixth Chapter.

THe Law considereth thinges ac­cording to publique respect, that is, as much as concerneth the common weale, not according to their contingencie in facto, which is euery mans obiect, and familiar to common sense, and therefore needeth not any artificall hand­ling: And the Students vnderstanding must be so sequestred & re [...]ued from vulgar opinion: being the mother of error, and measuring thinges onely by the skinne, and colour, that he must comprehend & conclude many things, which are verie remote from the reach of the the senses, and from ordinarie apprehension: in which contemplation the common Law of this Realme of England aboue all other doth shew wonderfull sharpnes, and a most exqui­site conceit, subtilizing thinges whereof com­mon sense hath but a confuse knowledge, being guyded by the principall reason & inseperable [Page] truth of euery thing, which the vnderstanding straineth out of the secret and hidden causes of thinges: for as in hearbes, if we touch them outwardly, we do not finde nor feele any moi­sture in them, but rather take them to be vrie, vntill by pressing or distilling of them, we wring out a iuyce proper to their nature: So the Law doth conceiue and conclude many things of ordinarie contingents, which com­mon sense can not perceiue, but rather imagi­neth them to be clean contrary to the truth, whereas they may to a good vnderstāding easi­ly appeare to be true by the certaintie & neces­sary coordination of their causes and reasons. That this may be made euident I mean to an­nexe some particulars for the explaning therof.

1 It is cleere by Law, that a terme and a freehold of the selfe same thing may be both in one man at one time, yet if this be deliuered to a superficiall vnderstanding, it will seeme a pa­radoxe. Tenant for terme of yeres maketh his executors & dyeth, the executors purchaseth the reuersion, in this case both the terme & fee-simple are in the executor to seueral purposes: for the terme shal be assets to the vse of the te­stator, & the fee simple free inheritance for the vse of the executor & his heires,43. E. 3. 27. et. Br. cases. And if a man be seised of land of an estate for life, the remain­der to his executors for yeres, he may deuise this term or assigne it.16. E. 2. per Herle, Coue­nants 25. And if lessee for yeres [Page 46] grant his terme to the wife of him in ye reuer­sion, & to a stranger, the inheritance of the hus­band can not extinguish the moitie of ye terme: because he hath the inheritance in his owne right, & the terme in right of his wife.14. Eliz. 416. Com. Brace­bridges case. A man seised of land in right of his wife is attainted of felony, & the king seiseth the land pro vita viri, the king hath but a chattel & the wife the freehold: for if a stranger enter, & the husband dye, the wife shall haue an Assise. 4. E. 3. 47.

2 Likewise it will seeme strange, though in Law & reason it be true, that a man should be remitted to his land to some intent, & yet not to an other: As if a recouerie be had vpon a false title against tenant in taile, the tenant in taile dyeth, the issue entreth, he is in of his first right against all but onely the recoueror.12. E. 4. 21. per Choke. So if te­nant in taile discontinue, & his sonne & heir ap­parant disseiseth the discontinuee to the vse of the father, the tenāt in taile dieth, the sonne by M. Chookes opinion is in his remitter against all, but onely the discontinuee.12. E. 4. 21. per Choke. et vide 7. R. 2. tit Entre en le Per, en le col­lect. de Bellew. the issue in taile which hath good cause of a Formedon in the discender, is of couin that A. should disseise the discontinuee against whom he recouereth: he shall not be remitted in respect of him, but shal be accompted a disseisor:18. H. 8. 5. 15. E. 4. 4. but against all others it seemeth that he is remitted. Te­nant in taile maketh a feoffement to the vse of his wife and his sonne being heire apparant [Page] to the intaile and dyeth, the issue is remitted against all persons but onely the woman.4. E. 6. 68. Dyer.

A title may be executed to some intent, and yet not executed to an other: And therefore if there be tenant for terme of life, the remain­der in fee to a stranger, against whom a reco­uerie is had pro loco & tempore in a Warran­tia chartae, brought by a stranger of other land, he in the remainder dyeth, the recouerer is im­pleaded and voucheth the heire of him in the remainder, and recouereth, tenant for life dy­eth, execution shall be [...]ued against the heire of the land whereof his auncestor had a remain­der, because there was a remainder executed in the father to this intent at the time of the Warrantia chartae brought:15. E. 4. 13. per Littleton. but to all other intents it was executory, for it was not exe­cuted that the wife might be endowed, nor for him in the remainder to bring a writ of right, 40. E. 3. 43. But the remainder in such cases is to some intents executed: for if he in the remainder had aliened his remainder in Mortmaine, the lord might haue entred,15. E. 4. 13. and vpon such a remain­der the lord may haue a Cessauit, 27. E. 3. 87. but the heire shall not haue an Assise of Mortdaun­cester. 39. E. 3. 3. Mortdaunce­ster 50. Fitzh. Na. bre. 196. k.

4 A thing may be extinct or in suspence in one respect, and in Esse in an other respect: the father being tenant in taile alieneth the land with warrantie, and hath a rent charge in fee [Page 47] issuing out of the land of his sonne and heire apparant, which rent discendeth to the sonne, this rent is a good assets for the value in res­pect of the discontinuee: and yet it is extinct in respect of the issue.31. E. 3. Gar­rantie 39. A man seised of a rent seruice is bound in statute staple, and after purchaseth the land, out of which the rent is issuing after execution, the rent is extinct, as to the conusor, but in Esse as to the conusee.4. Eliz. 205. Dyer. A corrodie is graunted to I. S. for life, who graunteth it backe to the grauntor for terme of yeares rendring rent, the corrodie is in Esse as to the payment of the rent, but in suspence as to the taking of the corrodie.20. E. 4. 12. 22. E. 4. 17. 18. And it was lately ruled in one Caires case in the Court of wardes, that if a man held land of the Queene by a certaine rent, and the Queene graunteth the rent to a stranger, who graunteth it to the tenant, the rent is extinct as to the payment, but in Esse as to the tenure. The King sei­sed of a forrest graunted the office of the for­rester to one rendring rent, and he graunteth the forrest to an other, the forrester forfay­teth his office, yet the grauntor shall haue the rent:26. Ass. p. 60. So that it must needes be that the of­fice to the intendment of law is to that intent in Esse. And if a man graunt to an other a rent out of his land in fee vpon condition, that if the grauntee or any of his heires dye, their heire being wythin age, the rent shall cease [Page] during the minoritie, if the grauntee dye hys heire wythin age, his wyfe shall haue dower, but cessabit executio during the no­nage: 10. H. 7. 13. per Keble. But in this case it seemeth that if the heyre dye during his nonage, the wyfe of the heire shall not haue dower of the rent: because it was neuer leuiable by the sonne, as it was by the father. A man seysed of two acres of lande hath issue two daughters and dyeth, now the rent is in suspence, as to one moitie, and in Esse as to an other moi­tie.9. E. 3. Charge 4. 9. Ass. p. 22.

5 The intendement of the Law is as stronge in a matter of law, as the trueth it selfe in a matter in facto: And therfore if A. be disseised, and hys brother maketh a re­lease with warrantie to the disseisee, and af­terward entreth into religion, this warran­tie shall be a barre to A. although that hee be lyuing:34. E. 3. Garrantie 72. for A. may haue his land by dis­cent, and therefore it seemeth to be reason, that the warrantie should discende vpon him as his heyre. Note here of what validitie the intendement of Law is touching a ciuill death. The Wardein of the Fleete who hath the office in fee dyeth seised, and the office discendeth to his sonne and heire, being then in prison, the Law doth presently discharge him of imprisonment, because he is to be at [Page 48] large the better to looke to others, that be in pryson.Plow. Com̄ Plats c. 37. A man maketh a lease to one for terme of life, rendring the first seauen yeares a rose, and if he will hold the land any longer then seauen yeares, that then he shall pay foure Markes yerely: liuerie is made, the lessee sur­rendreth at the ende of the first seauen yeares, his estate was adiudged to be but a terme ab initio, and no freehold, and the writ of coue­nant brought against him for not repayring was qui tenuit ad terminum annorum. 50. E. 3. 27. If a man make a lease of land excepting the trees which grow vpon the land, the trees are seue­red in law: for he hath no reuersion of them, and if he sell them, and after the sale make a feoffement, the feoffee shall not haue them, because they were seuered by the ven­dition or sale of them,20. H. [...]. 22. for by the exception they were seuered from the terme, but not from the inheritance, but by the vendition they were seuered from the inheritance. If the Baylife of the land doe demaunde a rent seruice, and the tenant denyeth it, and the Baylife sayth that hee will distraine for it▪ and the tenant sayth that hee shall not dis­trayne, wherefore the Baylife dare not pro­ceede further to take a distresse, for doubt of death, thys is a disseystn of the rent in the eye of the Lawe.49. E. 3. 14. Assise 66. And if a rent seruice be warranted to one, and the land doth escheat, [Page] the Law as M. Finchden thinketh transferreth the warrantie to the land.45. E. 3. Voucher 72. per Finchden.

6. One thing in the vnderstanding of Law may be of seuerall natures in seueral respects, and so one writ may be two seuerall writs to two seuerall intents: In an action of debt the declaration was of x. li. vpon a sale, and v. li. which he had deliuered to the defendaut to re­deliuer, and it was held good, because the ac­tion was in the debet and detinet, and the war­rantie of atturney and the essoine in this case shall be in placito debiti. 32. E. 3. Brief 288. Quaere, If a man lease land to one for terme of yeares rendring rent, and the lessor graunteth his rent to a stranger, and the lessee surrendreth; this doth not extinguish the rent, for now it is a rent seck which doth not depend vpon the reuer­sion, [...]0. E. 4. 12. And so one man to the vnderstanding of Law may haue seuerall capacities or respects: For if a man disseise a feme sole, being an inhe­ritrix of certaine land, and after he taketh her to wife, and they haue issue, and the husband is disseised, and the disseisor leuieth a fine wyth proclamations, the husband dyeth fower yeres after the proclamations, and before the fifth yere be passed, the issue being of full age, and after the wife dyeth, and the fifth yere passeth, now the issue is bound as heire to his father, yet he may haue other fiue yeres, as heire to his mother, to be accompted from the death of [Page 49] his Father.Plow. Com. Stowels c. 367 So if I. S. be tenant of land, for terme of an other mans life, the remainder to an other for life, the remainder to the said I. S. for terme of his life, or in fee: and he is disseised, and the disseisor leuieth a fine with Proclamations, and the fiue yeares incurre, now is I. S. bound for the present estate, but if he in the mesne remainder for life die, hee shall haue other fiue yeres for the other estate. Ibid. So if a man haue an estate in land for the life of A. the reuersion to himselfe for the life of B. the remainder to himselfe for the life of C. and is disseised, and the disseisour le­uieth a fine with Proclamations, he shal haue fiue yeares seuerally after euerie seuerall es­tate determined.Plow. Com. 368. Stow. cas. I. S. giueth land to A. his daughter in taile, and hath issue B. ano­ther daughter, and dieth, A. dieth hauing is­sue C. a Precipe is brought against C. who voucheth to warrantie her selfe and B. as heires to the donour of the reuersion to haue the warrantie paramount, in this case is C. both the vouchor and the vouchee.2. H. 6. 16. A terme is deuised to one who is made executor, he en­treth, this is an administration and an execu­tion of the terme vnto him, and he is both de­uisee and executor.20. Eli. Com̄ Weldens cas A. couenanteth by In­denture with B. that the sonne of A. shal mar­rie the daughter of B. and that therefore B. shall giue vnto A. an 100. li. & if the marriage [Page] did not take effect before such a day that then A. and his heires should stand seised to the vse of B. and his heires vntill the hundred pound be payed by A. his heires or executours B. dy­eth, and after the marriage taketh not effect, the vse and possession of the land vesteth in the heire of B. but Quaere saith Brooke whether he shall be in ward or no, for he is an heire and yet he is a purchasor.3. Mar. Br. Feff. al vses 59. & vide 3. Mar. 128. Dy. Wilf. cas & 13. E. 3. Br̄ Exting. 45. If I. S. be Deane of P. I may giue him land to him and his succes­sours, and to him and to his heires, there hee taketh both as Deane and as a priuate man, and is tenant in common with him selfe: so if a rent charge be graunted in such manner, he shal ioine with himselfe in an Auowry.24. H. 8. 30. per Pollard Like­wise the Lawe may deny one a benefite as he is I. S. and yet allow it vnto him as he is exe­cutor to I. N. and therefore if an executour be Outlawed, or Excommunicated, which be disabilities in Law: yet as an executour hee may maintaine an action, because he sueth and is to recouer to the vse of an other person.14. H. 6. 14. 21. H. 6. 3 and so an executour may haue an action of trespasse in his owne name, without name­ing his companion in the executorshippe, if goods be taken out of his possession.42. E. 3. Exe­cut̄s 67. For he is possessed of them as a priuate man, but he is possessed of them to the vse of an other as executour.11. H. 6. 35 And he need not in the case afore­said name, himselfe executour.12. R. 2. Exe­cutors 75. For if he do, [Page 50] it may tend to the abatement of the writ accor­ding to M. Kebles opiniō.16. H. 7. 4. ꝑ Keble 19. H. 6. 65. per New [...]. who saith that the possession of one of the executors (his meaning is as he is executor) is the possession of both, and herewith agreeth the opinion of Newton, but by their fauors though the propertie of the executors in the goods of the testator be one and the same, yet the possession may be seueral, for he that hath the custody of goods may only be said to be in real and actual possession of the same, which kinde of possession is onely heare meant, for which cause a writ of Detinue that concerneth the possession of goods, shall bee brought only against that executor who is pos­sest of the goods.

721. H. 6. 1. 39 E. 3. 59. H. 5. 14 11. H. 4. 46 The Law may worke seueral thinges in one instant as if a disseisor make a lease for yeres, and after he and the disseisee release, by one deed to the tenant for yeres, the Law ad­iudgeth the release of the disseisor first to take effect, and after the release of the disseisee, for there is no priuity nor estate in the lessee, vpon which the release of the disseisee may inure, if the Law doe not make such construction.21. Eli. Com̄ 539. Para. cas. If the tenant for thirtie yeres make a lease for tenne yeares, and they both surrender to him in the reuersion, the surrender is good for both estates, and yet the lessee for tenne yeares, coulde not surrender by himselfe for defaulte of priuitie, but when the other [Page] ioineth with him, his surrender shall hee ta­ken to goe before and the other to followe it.14. H. 7. 1. & 4. Likewise if the tenaunt for terme of life surrender to the grauntee of the reuersi­on, this is both an Attournement and also a Surrender.19. Eliz. 258. Dyer. So if a man haue land by discent by the Mother side, and leaseth it for yeares, the lessee couenanteth and graun­teth to pay yerely to the lessour and his heires xx. s. the lessor dyeth, the Law in a moment will conuey the reuersion, to the heire of the part of the Mother, and the twenty shillings to the heire of the Fathers side, because it is a sūme in grosse.Plow. Com̄ 132. Brow. cas

8 By intendement and admittance of Law a thing suspended may bee reuiued, for if the donour disseise the donee in taile, and af­ter maketh a feoffement, and the tenant in taile reentreth, nowe the feoffee shall haue the reuersion.9. H. 7. 25. per Fineux So if the heire in taile entreth vpon the discontinuee, and maketh a feoffe­ment vpon condition, and for the condition broken reentreth, and after a recouerie is had by the discontinuee, the issue in taile is now restored to his first action, and the en­taile is reuiued, for by the breach of the condi­tion the feoffement is disanulled.23. H. 8 Br. Restore al pri­mer acc' 5. Tenant for life, the remainder in taile, the remainder in fee to the heires of the tenant for terme of life, graunteth a rent charge in fee, this shall [Page 51] charge the land during his life, but it shall be suspended during the entaile, and after the en­taile determined it shall be reuiued, and shall charge the heire of the tenant for life.5. E. 4. 2.

9 The Law altereth the nature or sub­stance of a thing by matter, ex post facto, A man seised of lande in right of his wife, en­treth into religion, the wife alieneth, the hus­bande is deraigned, the husband may reenter into the land.33. E. 3. Ent̄ congeable 52. So if a man bee indebted to a villaine, who recouereth in an action of debt, and after the debtour purchaseth the mannor to which the villain is regardant, and after alieneth it, the villaine may nowe haue execution.12. H. 4. Ex­ecuc' 28. If a man make a lease for terme of an other mans life rendring rent, and the ar­rerages incurre, the lessor shall not haue an ac­tion of debt, because he hath a franktenement in the rent, but if Cesty que vie die, now is the freehold as to the rent conuerted into a chat­tell, and nowe he shall haue an action of debt. 39. H. 6. 26. per Paston Likewise a deuorce altereth the estate of frankemariage into a bare freehoold.7. H. 4. 16. If a man adde a condition to a single Obligati­on after the deliuery, this maketh the Obli­gation void, for now it is not his deed, and the same Law is of the rasing or enterlining of a condition after the deliuery of the Obli­gation. 36. H. 6. 5 per Ash. Iust. If land bee giuen to one in taile, and the donee giueth the land to the donour, [Page] and to a straunger for terme of their liues, this is a discontinuance conditionall, name­ly if the straunger suruiue.28. H. 8. 7 Dy. per Fitzh. If the Sheriffe attache one by force of a Capias that is iusti­stable, but if hee returne a Non est inuentus vpon the writ, he is a trespassour ab initio. 3. H. 7. 11 If I. disseise I. S. and leuie a fine to I. N. and after I. S. entreth vpon I. N. and en­feoffeth me, and I. N. entreth vpon me, and I bring my Assise, and I. N. pleadeth the fine in barre, I may auoide the fine by shew­ing the matter aforesaid.15. E. 4. 5 per Litt̄. If a fine be leuy­ed of land in auncient demesne, and the Lord disanulleth the fine leuied at the Common Lawe, he hath restored the right to him that leuied the fine.16. E. 2. cont̄ claime 10 If hee which abateth after the death of the tenant in fee simple make a Feoffement vpon condition to be perfourmed within nine yeres ensuing, and after the feof­fee leuieth a fine with Proclamations, and the fiue yeares incurre the condition is bro­ken, and the abator reentreth, now the heire of him that dyed seysed may haue an Assise of Mordauncestor against the abator, whereas before hee was bounde by the fine.Plow. Com̄ 358. b Sto. cas. Te­nant in tayle maketh a Feoffement and ta­keth backe an estate in fee, and bindeth him selfe in statute Marchant, and then maketh a Feoffement vpon condition, and after the re­cognisance is put in execution, and the tenant [Page 52] in taile dyeth, and the heire in taile being with­in age entreth for the condition broken, he is remitted, and the recognisans auoided, but o­therwise it had bin if he had bin of full age: for then he comming in vnder the Estoppell should not haue auoided the Estoppel, nor by consequence the recognisans.8. H. 7. 7. If my very tenant be seised of a Manor held of the King in Capite, and of an other Manor held of me by knightes seruice, and he is disseised of the Mannor helde of the King, and afterward dyeth seised of the Manor held of mee, where­vpon I seise the body of the heire, and after the heire within age recouereth the Mannor held of the King, nowe the King may haue my lande also in Warde, because the heire shall nowe be adiudged to bee in by discent, and the King shall haue the Wardeshippe of the body.15. E. 4. 14 per Littleton Skreenes cas If my Horse strike one, and af­ter I sell the Horse, and afterwarde the partye that was stroken, dyeth of the stroke, nowe shall the Horse be forfayted as a Deo­dand. Com̄ 290. ꝑ Car. dame Hales. cas If a villaine inflicte vpon himselfe a mortall wounde, and the Lorde seyseth his goods, and then the Villaine dyeth, nowe shall the Queene haue his goods be­cause hee is Felo de se. Ibid. A man admini­streth of his owne wrong, and after taketh letters of Administration of the Ordinarie, this shall relate to the death of the intestate. [Page] 9. E. 4. 33. the heire chargeth land which is after re­couered in a writ of Dower, the woman shal holde it discharged.10. H. 7. Charge 3. Thus it is euident that the vnderstanding of the Lawe worketh especially vpon relations on the first causes of thinges reducing through many straites of colourable pretenses and obiections the right of a thing to him to whom it appertai­neth, according to the qualitie and exigence of the said right and title, so that the vnder­standing of the Student when it entreth in­to the suruey of these intricate and hidden pointes, must bee of this abilitie to compound thinges, and to resolue them by imagination, to builde and destroy, and to turne sayle by circumstances and occurrences: for there is no case which accidents may not alter, but that one thing may counteruaile an other, or that a defect may be supplied by enforcement of reason, or that a wrong may bee purged and transfourmed into right, and blacke as it were changed into white, contrary to na­ture is the worke of intelligence reflecting vpon it selfe, some perhaps carry such spiced and scrupulus consciences, that they cannot abide any fiction or representation of a thing that is not in facto, but surely the supposall admittance and intendement of the Law is necessarie, without which neither the science of the Law, nor any other which consist in [Page 53] contemplation and abstraction of the essences of thinges from the confusion and mixture of circumstances can be of any woorth or force. And though I must confesse that euery thing, which is imagined to be done, and is not actu­ally done is a phantasie, or an vntruth, yet this must be graunted, that, that which is not really done, and yet for auoyding inconuenience must be supposed to be done in facto is not a fault, though it be false. Many things of thys kind & qualitie haue I before immediatly proposed which will be voide of all effect, if you take imagination from the Law: Let it therefore be considered what this imagination is where­of we speak, that by the description thereof it may be better knowen. It may thus appeare vnto vs, Fictio a supposall or admittance of a thing to be is, legis aduersus veritatem in re possibili ex iusta causa dispositio, the disposing of the Law against a matter of truth in a thing that is possible, grounded vpon iust cause: and there is great difference betwixt imagination and presumption, because fictio iuris the ima­gination of law tantum operatur quantum ve­ritas ipsa, in the conclusions and decisions of law, and the Law maketh sometime ens ex non ente in intelligence, though not in ex­istence: but praesumptio stat in dubio it is doub­ted of, and yet it is accompted veritatis comes, [Page] the companion of trueth, qu [...]tenus in contra­rium nulla est probatio: And the vse of suppo­sall or fiction in the Law is onely to supplie that quod desideratur in facto, which is wan­ting in fact, vt ex ipsa produc [...]ntur veri i [...]ris effectus, that true effectes and conclusions of law may proceede from it. The Logicians say that the vniuersals are not in rerum natura, for if they were they should be monstra: for an vniuersal man, or an vniuersall tree compre­hending in it all trees, is r [...]her by vnderstan­ding to be comprehended then by sense to be compassed, yet I would not haue any ima­gination to be vsed: but where Equitie and the orderly coherence of thinges doth re­quire it.

That the Student ought well to conceiue the reason and Iustice of the Law in distinguishing and establishing the propertie and communitie of thinges.
The seauenth Chapter.

THe ende and effect of the Law is to settle the propertie and right of thinges in them to whom they belong: And to iudge those things common which continuance of time and the entercourse of parties hath distributed & war­ranted to many, for if all thinges should be common, there should be nothing in order, and if nothing should be common, men would hardly be kept in duitie, for then should friend­ship, societie, and conuersation, the comforts of mankind faile, which would turne the whole common weale into a wildernes: therfore the most prudent and politike Law-makers haue thought it most conuenient, that betwixt these two extremities a middle & euen course should be taken, whereby propertie myght be reteigned, and yet communitie preserued. [Page] Plato, because once he was of opinion that all thinges ought to be common, hath therefore many blowes of his scholler Aristotle wri­ting against him in hys Politikes, in which booke he hath a learned difference, that all that be common [...] in vse but not [...] in possession and title, which notwithstanding is not generally and indefinitely to be admit­ted, because then it tendeth to the ouerthrow and vtter subuersion of all common weales: But Plato being after better aduised did re­tractate his former opinion, and laboureth to confute it: for in his book of Lawes he writeth in one place, Let euery man haue the free vse and possession of his goodes by law, whe­ther he be citizen or stranger, Plat. lib. 8. de legib. and in an other place: The distinction of demeanes, inheritances, and titles, is the foundation of all priuate contractes, which must be seuere­ly established by Law: therefore meum and tuum ought to be in euery common weale. Plat. lib. 11. de legib. And againe, Let the inheritances and pro­perties of thinges be definite and certaine in euery common weale, and let a certaine manner of purchasing them be prescribed by Law. Plat. lib. 12. de ligib. Thus it is euident that a distinct propertie of thinges is commodious and con­uenient for the good administration of a com­mon weale: It is of two sortes, eyther an absolute and indefeasible propertie, or els a [Page 55] qualified propertie and sub modo. An abso­lute propertie is such which is not in any sort subiect to the claime of any other: but a qualified propertie is that, which one man may claime after one sort, and wyth a cer­taine limitation, and an other may claime af­ter an other maner, and wythout limitation: As if a man doe hyre beastes of an other to manure his land for a certaine tearme, hee that hyreth them hath a propertie in the beasts pro tempore, and therefore if the beastes du­ring the tearme be taken away, he may haue a generall Repleuine: 42. E. 3. 18. 11. H. 4. 17. 17. E. 4. 2. So he may haue of beastes which bee in his custodie and were committed to his keeping:47. E. 3. 12. And so he may haue a generall writ of Trespasse for the ta­king or dryueing away of beastes in his cu­stodie, though the absolute propertie bee in an other man: But if hee whych hath the verie propertie doth take them, an action of the case will onely lye48. E. 3. 20. 11. H. 4. 23. And the Bailie of corne or money, being out of sacke or bagge, hath so farre foorth a propertie in the thinge deliuered, that if the Bailie be afterward at­tainted of felonie, he shall forfait the corne and the money: for it cannot be knowen whe­ther they be mine or no.3. E. 3. Co­rone 317. 323. 334. And the Lord may haue a Repleuine of the beastes of hys vil­laine, or bondman, if hee haue bin seised of [Page] his villaine.42. E. 3. 18. Na. br. Fitz. 69. 9. H. 6. 25. per Bab. 19. E. 3. Reple­uin 32. 33. E. 3. Rep. 43 And it appeareth by diuerse bookes, that in an action of trespas, it is no plea to say that the propertie, that is the verie propertie, is in an other.12. H. 6. 19. 27. H. 8. 21. And it is sayd lykewise, that hee out of whose possession goodes are stolne, may haue an Appeal: and he lykewise may haue an Appeal who is the verie proprietarie.19. E. 3. Re­pleuin 32. And therefore it is a firme conclusion in law, that if sheepe be de­liuered, or leased to one for a certaine time to marle his ground, the deliuerie or demise is a good plea in barre of an action of Tres­passe, or Repleuine, because hee hath a pro­pertie modo et forma against the baylor him­selfe, or lessour, and may haue an action a­gainst him for taking them away wythin the time.21. H. 7. 14.

2 And as the propertie of thinges may be particuler or generall, so likewise it may be ioint or seuerall: A ioint propertie is where two or more are ioyntly interessed in a thing: A seuerall propertie when they haue seue­rall interestes in seuerall thinges: and there­fore where the propertie or right in goodes and chattels is ioint, there the action which is brought to trie the propertie must not bee seuerall: And therefore in a writte of Rauishment of a warde the defendant sayd that the plaintife had nothing in the seyg­niorie [Page 56] but onely in common wyth such a one, and this was helde a good plea, wythout saying that hee had nothing in the warde in seueraltie, or wythout shewing how hee helde in common in parcenarie, or by ioin­tenauncie. 6. H. 4. 6. 12. H. 6. 4. 22. H. 6. 14. & 1. E. 4. 7. And so if the propertie bee se­uerall, the action must not be ioint but se­uerall: And therefore if in a writte of Re­pleuine brought by two for certaine beastes, if the propertie of some of the beastes be­long to one of them onely, and the proper­tie of some of the beastes to the other, the writte shall abate.28. E. 3. 92. 3. H. 4. 12. 34. H. 6. 37. 2. E. 4. 23. 10. E. 4. 2. 8. E. 3. 15. Thus it is euident that the Lawe doth maintayne and vpholde the ioynt and seuerall propertie of thinges, with­out which the common weale could not con­sist. Now let vs consider how the commu­nitie of thinges is lykewise respected by Law.

3 A man may obserue and deduce hys accompt from former times, that it hath bin thought very necessarie and conuenient that mutuall commerce and trafique betwixt Na­tion and Nation should be entertayned & con­tinued: Plat. lib. 12. de legib. And therefore Plato wisely admoni­sheth, peregrinorum commercia respub. né auer­setur: And Amásis the Egyptian king was so [Page] glad of the commerce and resort of strangers, that he graunted to the Grecian merchants beeing meere aliens, the vse and exercise of their rites and religion in their owne langu­age: And to the ende that strangers might more commodiously practise their negocia­tion in that Realme, there was a certaine place appointed in that kingdome, namely Naucrate for the receit of forraine wares,Herodot. lib. 2. which course is greatly approoued by Ari­stotle, whose opinion is, that a principall Ci­tie must be erected in some conuenient place whereto thinges which be necessarie to thys lyfe may bee abundantly conueyed, and to which there may bee easie passing for them that be in league w [...]th vs, and hard for others: Arist. 5. po­lit. cap. 7. 6. polit. ca. 7. et lib. 7. ca. 4. et 5. and therefore sayth he it ought to be scitu­ate neere to the sea.7. polit. cap. 5. And doubtles iust was the quarrell and complaint of the people of Megara against the Athenians, who had vt­terly barred and secluded them from theyr hauens, and from all marting wyth them: Plutarch. in Peric. for he whych breaketh and dissolueth the reciprocall entercourse of nations, is an eni­mie to the societie of mankind. And Strabo in hys last booke noteth it as the propertie of the Barbarians, to repulse and keepe out of theyr territories all straungers, which custome is agaynst the Lawe of Nations, [Page 57] what a great point of inhumanitie is it to deny them the sea which by nature is open to all:Vlpian. lib. 8. Digestor. tit. 4. c. 14. yea, it ought to be as common as the vse of the aire:Celsus li. 43. Digestor. tit. 8. c. 3. and all creatures may claime the free vse of that, as may appeare by that [...]aying of Daedalus:

Omnia possideat, non possidet aera Minos.
Ouid. in Metamorph.
Though Minos all things do possesse, the aire is not his owne.

And the shore of the sea is by nature common to all, as Neralius sayth,c. 14. tit. Digestor. de acquirend. rerum domini. and though Em­pires and kingdomes be deuided, yet the vse of such things remaineth still in common, and therefore the saying of Maro in the person of one of his traueilers was vttered with good reason: ‘Quod genus hoc hominū, quaeue hunc tam barbara more [...] permittit patria? hospitio prohibemur arenae.’ but yet to enimies, because in them the league of friendship doth faile, the right of fellowship should not be graunted. For grossely are they deceiued, who would without restraint haue all things common, of which error the Ana­baptists are patrons, and do endeuour to ground their error vpon scripture, but falsely, for Abraham and the Patriarches were men of great riches: Iosua did publikely and pri­uately distribnte his goodes to the people of [Page] Israell. There be in Solomon precepts of the proprietie of things. And God woulde not haue sayd, Thou shalt not steale, if he would haue had all things common: for to steale, is to take away goods wherein others haue a propertie, and therefore theft is sayd to bee contrectatio rei alienae animo furandi, inuito illo cuius illa res est. Stamford. fol. 24.

3 But yet the rule of charitie and soci­etie requireth that some things should bee in regarde of vse and benefit common to o­ther, and therefore by customes of Coun­tryes, and by lawe, the offspring of these customes, the earth is in parte appropria­ted vnto some, and in parte participated and made common to others. Therefore the Common lawe doth well allowe and mainteine the common vse of certaine things, as namely, the vse of Fishing in another mans Pond,18. H. 6. 29. & 92. 17. E. 4. 7. 7. H. 7. 13. 18. E. 4. 4. of pasture for hys beasts in an other mans soyle,9. H. 6. 36. 27. H. 6. 10. 15. E. 3. Common. 12. 22. Assis. pl. 36. 36. Assis. pl. 3. 4. H. 6. 13. 37. H. 6. 34. 4. E. 4. 29. 10. E. 3. 15. 10. E. 3. 56. 4. E. 3. 4. 15. Assis. pl. 5. 14. E. 3. Barre. 277. 17. E. 2. Commō. 23. 22. H. 6. 51. of taking of an esto­uer or maintenance of wood in another mans groue,N. B. Quod permit. 11. Elizab. 281. Dy. of hauing a franchise and libertie in an other mans Mannor or Seignorie,13. E. 45. 10. H. 7. 13. 7. E. 4. 10. 48. E. 3. 17. 30. E. 3. 20. 3. H. 6. 12. 34. H. 6. 43. and lastly, of hauing a way through an other mans ground.33. H. 6. 26. 8. E. 4. 9. 6. E. 3. 23. 2. E. 4. 9. 20. E. 3. Admeas. 8. 21. E. 3. 2. 11. H. 4. 82. 2. H. 4. 11.

4 Some thinges there are, the propertie whereof the lawe can not vest in any, and therefore it leaueth them to the occupant, that is in playne tearmes to hym that can [Page 58] seise them, as things which are by nature ferae naturae, as beasts, birds, or fishes, being in theyr owne libertie. And as to the pro­pertie it is not materiall whether they bee taken in a mans owne ground, or in an other mans, and such things be his no longer then they bee in hys possession or custodye: for when they haue escaped and recouered their naturall and pristinate libertye, then they cease to be his, but then the lawe vnderstan­deth such things to haue recouered their na­turall libertie, when they are eyther past the view, or els being in view they be hard to be followed, and recouered. The nature of Bees is wilde, and therefore when a swarme of them lighteth vpō thy tree, they are no more thine before they be couered with thy hiue,Iustinia. lib. Institut. 2. then hawkes, which haue made their neasts in some of thy trees, or doues in thy doue-house for though the yong birds be thine, whereof thou mayest bring an action of trespasse, quare vi & armis pullos esperueriorum suorum in bosco indificantium, or columbas columbaris sui caepit, which writ is not only maintenable, whē the doue-house is broken or the dore open, and the young doues be taken out of their neastes, but an action of trespas wil also lye for ye troubling or hurting of the old doues within the doue-house, though they be ferae naturae, as wel as for chasing & killing conies in a mans warren,16. E. 4. 7. 22. H. 6. 6. 67. 18. E. 4. 8. [Page] yet he shall not vse this word suos, 43. E. 3. 24. 12. H. 8. per Newdig. 14. Eliz. 307. Dy. in his writ, yet because he hath them by reason of his Warren or Doue-house wherein he hath a propertie, he shall haue an action for the chasing or the taking of them.8. E. 4. 5. 22. H. 6. 55. N. B. Fitzh. en le briefe de trespasse. The nature of Cranes and Doues is wilde: neyther is it materiall that by custome they are wont ano­lare & reuolare, to flye from home, and re­turne home. And in such things which are came, and by custome are wont to depart and yet to returne, this rule is allowed, that so long they may be sayd to be thine, as they haue animum reuertendi. And felonie cannot be committed in the taking of beasts that be sauage, if they be sauage and vntamed at the time of the taking, nor for taking of Doues being out of a Douecoate, nor for taking of Fishes being at large in the riuer, for such taking is not contrectatio rei alienae sed quae est nullius in bonis. 18. H. 8. 2. 22. Assis. pl. 95. And the stealing of a Doe which is tame and domesticall is fellonie, but then saith M. Stamford, it seemeth that hee that stealeth it should haue certaine know­ledge that it is tameStamf. lib. 1. c. 16. but if the Doe be kil­led and then stolne, this is felonie.10. E. 4. 15. And though a man may haue for the taking of his Ferret an action of trespasse, because hee is profitable to take Connies for the vse of his maister. Yet because a Ferret is ferae naturae, a man cannot haue an appeale of fellonie for [Page 59] him, no more then he may haue for the stea­ling of his Hauke and Popiniay, or such like, for such things are ferae naturae, and a man can haue no propertie in them, neither can he say in his writ feras suas, for that implyeth a contradiction, and because they are sauage, therefore they are not tithable. But when such things are made came by my labour and cost, the propertie of them is changed, and the nature altered, and then if a man take them out of my possession, I may haue an action. For a man may haue an action quare molossum suum cepit, because he is necessarie for the kee­ping of his house, or the keeping of his folde or a fish pond.12. H. 8. 3. Fillowes C. per Brooke. Pollarde. Brudnell. Newport & Newdigate. But the nature of hennes and geese is not sauage, and therefore if they shall flye away, though they be past thine eye-sight, notwithstanding in what place so euer they be, they cease not to be thine: and who so e­uer deteyneth them, is punishable by way of action.Iustini. lib. Institution. 2.

4 In the Ciuill lawe there is this case, certaine Sheepe were caried away from the Shepherd of A. by Wolfes, an husbandman of the next village hauing pursued them with great and strong dogs which he kept for the safetie of his beasts, recouered them from the Wolfes, for the dogs did enforce the Wolfes to leaue them, and when A. did demaund the Sheepe, the question was whether the sheepe [Page] became his that did so recouer them, or remai­ned still the sheepe of A, for the dogs did get them by a kinde of hunting: yet Pomponius thought in this case, that as those things which are taken either on sea, or on land, do cease to be theirs that tooke them, when they are come to their naturall libertie, so by the same reason our goods takē away with beasts liuing either in the sea, or on the land, do cease to be ours whē the beasts that tooke them haue escaped our pursuit. And who wil affirme that that continueth to be ours which a bird flying hither and thether, carieth out of our barne, or out of our field, or by any meanes carieth it away from vs, if therefore it cease to be ours when it commeth to the mouthes of beasts, in common apperance, irrecuperably, it must needs become his who first recouereth it, and so be made proper to the occupant, euen as a fish, or bird, which hath escaped our power, if it be taken of an other, is streightway his, but he thinketh it more reasonable that it should continue ours, so long as it may be re­couered. Vlpianus lib. 19. ad edictum.

5 Likewise a thing pro derelicto habita, waiued & forsaken, is nullius in bonis, as when a man for feare of a tempest casteth his things into the sea, or some danger being imminent, leaueth them vpon the land, or els of his owne free will leaueth that which is his owne sine [Page 60] spe rehabendi. 29. E. 3. 29. 12. E. 4. 5. If a thing be fallen out of a chariot or wagon, it may be sayd to be lost or waiued.Vlpia. lib. 56. ad edictum. And if a man haue a libertie to take wayfes and strayes in his mannor by prescrip­tion, and certaine beasts be wayued or do stray within the precincts of his mannor, and a stranger taketh them, he that hath the mannor shall not haue an action of trespasse generall for the taking of them before he hath seised them,16. Elizab. 138. Dy. though the lawe be taken to be other­wise by some.ibid. & Fitzh. N. B. 19. But 13. E. 3. a writ was mainteined by an Abbot by reason of his fran­chise in the like case, but that was an action vpon the case, which prooueth that the pro­pertie was not in him before seisure.13. E. 3. Briefe 678. But it hath been held for cleare lawe, that felonie is not committed in the taking of treasurie found, wreck of the sea, wayfe and stray, and such like, vnlesse they haue been before sei­sed, and the reason is, quia dominus rerum non apparet, ideo cuius sunt incertum est, and there­fore the punishment in such cases is by fine, and not by the taking away of life and mem­ber. 22. Assis. pl. 99. Such landes, the propertie whereof hath been executed by possession, cannot be wayued but by matter of record.7. E. 4. 7. & 20. And it is a certaine rule and sound reason, that such things as cannot passe but by matter of re­cord, cannot be wayued or relinquished, but by matter of record.8. H. 4. 13.

[Page] 6 Such things are said to be nullius in bo­nis, which haue not from time out of minde bin knowne to belong to any man, as trea­sures hid in the earth, as when any money, gold, siluer, plate bullion is founde in any place, and no man knoweth in whome the propertie is. The lawe bestoweth it vpon the King, and it becommeth res fiscalis, parcell of the treasurie royall, and therefore it is called in the common lawe treasure troue, that is to say, treasure found, whereby it appeareth, that the King is not proprietarie of it, till it be founde, but it is before nullius in bonis. But if any mine of mettall be found in any ground, that alway pertaineth to the Lord of the soyle, except it be a mine of gold or siluer, or a mine which hath vaines of gold and sil­uer, which shall alway be the Kings in whose ground soeuer they be found:Exposit. des tearmes de ley, Plowd. in le case de informat. pur mines. and in aun­cient time, as M. Bracton sayth, it belonged by the lawe of nature to him that found it: but now by the lawe of nations it is res fisci, and belongeth to the King: but heretofore it hath bene ruled quod thesaurus non competit regi, nisi quando nemo scit quis abscondit th [...] ­saurum: Fitzh. corone 446. for then (as M. Stamford collec­teth) it shall belong to him in whom the pro­pertie was before, and if he dye before such finding, his executors shall haue it.Stamf. lib. 1. cap. 42. And be­cause there might befall some square or va­riance [Page 61] betwixt the Lord of the soyle, and the King about the propertie of such treasure, it is therefore decided quod thesaurus compe­tit domino regi & non domino libertatis si non sit per verba specialia aut per praescriptionem. Fitzh. corone. 281. 436.

7 And things are sayde to bee nullius in bonis by common consent, as things conse­crate and religious: for though the goods belonging to a Church, as belles, seruice­bookes, surplices, chalices, and other things, must be supposed in a writ of trespasse brought by the Churchwardens to be bona parochia­norum in custodia nostra existentium. 8. E. 4. 6. 37. H. 6. 30. 12. H. 7. 27. 8. H. 5. 4. 11. H. 4. 12. 19. H. 6. 66. Yet in that the lawe giueth the action to the Church­wardens, and to their successors, for the re­couerie of such goods vniustly taken, and doth giue the propertie to the parishioners, this properlie must be intended to be to the vse of the church, that is, to the vse of the parochi­ans, as they are the Church: for though it be true that Rolfe sayth, 8. H. 5. that a church pa­rochiall can not otherwise be intended, but a house made of stones, and walles, and roofe, and such materiall things which can not take by gift or feofment no more then a church conuentuall which lacketh a soueraigne:8. H. 5. 4. yet it cannot bee denyed that the parishio­ners are incorporate for the purchasing of personall thinges, and that in regarde of [Page] such capacitie, they may be sayde to be the Church it selfe, as well as the Parson and his successors in auncient time were sayd to be the Church in the purchase of land and realties, which may appeare by this case: Land was deuised to one for life, the re­mainder to an other for tearme of life, the re­mainder to the Church of S. Andrew in Holburne, this is adiudged to be a good de­uise, 21. R. 2. Deuis. 27. and this must needes goe to the Par­son and hys successors, because the Church­wardens and parishioners were neuer admit­ted by lawe to purchase land to the vse of the Church. And Belknappe sayde, that the cloathes of a dead man being found dead in the field, did belong to hys executors if hee had made a will, otherwise that they should be deliuered to the Church for celebration of diuine seruice for the soule of the dead: for his meaning is (as I take it) that the Ordi­narie should intermeddle with them for the disposing of them.48. E. 3. Endite­ment. 27. And if a man take a coate-armor which hangeth ouer a dead mans tombe in a Church, the enditement must be bona executorum, of the dead man: but if a graue-stone be taken away, the enditement must be bona ecclesiae. Lambard Eirenarc. 494. 495.

That the words or termes vsed in bookes of lawe ought to be vnderstoode and applied as the lawe doth expound and conceiue them.
The eight Chapter.

IT is not possible for a man to be skilfull in any Science, vnlesse he do perfitly know the words which do occurre and are often vsed in that Science. I doe not meane wordes of Arte onely, which by Lexicons and explana­torie bookes may easily be conceiued, but such as do import and concerne the obiects of the science, about which it is principally conuer­sant. To pursue therefore briefely an inter­pretation of such words as in the lawe are ma­teriall, I take it not to be dissonant from or­der to begin with the diuersitie of lawes, and to shew how these words, the lawe of Nature, the lawe of Nations, the lawe Ciuil, the com­mon lawe, the statute law, the customarie law ius merum, and aequum et bonum, are vsed in the lawe bookes, and are to be vnderstood, that so it may be knowne how and in what sort one lawe differeth from an other, and of what [Page] qualitie and condition that lawe is to which the Student is addicted, or vpon which hee doth grounde his reason. The lawe of Na­ture therefore is that, which the Nature of Natures, or the God of Natures of the Phi­losophers called Natura Naturaus, hath caught all creatures that haue sense by the mediation of nature created of which they consist: for this lawe is grounded in the roote and inwarde partes of Nature, and therefore one sayeth well, Habemus non scriptam sed natam legem, quam non didici­mus sed hausimus: This is according to Iustinian his definition, in hys Institutes, to whom D. Hotoman may seeme at the first to doe iniurie by obiecting that by this de­finition, to eate, to sleepe, to mooue, and to rest, are parcell of the lawe of nature: and though this be aunswered by some,Gou. lib. 1. lect. [...]ur. c. 19. that these thinges are excluded from the defini­tion, by this word ius, yet what absurdi­tie woulde followe if such thinges shoulde bee graunted to bee parcell of the lawe of Nature, why not as well as the repulsing of force, which apparantly proceedeth from the lawe of Nature. For in truth there is no difference in the effect betwixt exter­nall force, and the force whiche a liuing creature hauing sense should doe to it selfe, [Page 63] if it shoulde not performe these aforesayde actions of Nature, as to eate, to sleepe, to mooue, and to rest, whereby Nature is pre­serued and kept in time. This is playne in men, who by the Ciuill lawe are sayde to kill, in denying nourishment to them­selues, or others, whereby life and nature may be mayntayned. And Iosephus writeth well, that it is against the nature of liuing creatures for any of them to kill it selfe.Ioseph. de bel. Iud. lib. 3. But D. Hotom. doth further cauill, follo­wing hys forefather Valla, that lawe can­not bee applyed to beastes, no more then in­iurie may be done vnto them. To this may be replyed, that iniurie in some sense may be done vnto them, if iniurie be taken for that quod inre non fit, which is not done ac­cording to that lawe, that is prescribed vn­to them by nature. But if it bee done ac­cording to the rule of nature, though it dif­fer from the nature of all other things, yet it is not iniurious or vnnaturall, for ex­ample. All birds except the Cuckoe, doe fo­ster and bring vp theyr young, these doe it by the lawe of Nature, this doth it not by the lawe of Nature, and yet doth no iniu­rie to her young, because shee doth it by the instinct and priuiledge of Nature. This lawe is of all most auncient, beeing con­naturall [Page] vnto vs, and following immediatly and indissolubly, the very principles of Na­ture created, being an euen leuill, and most iust lawe in it selfe, though wrested and cor­rupted by the corruption of things: but in what kinde so euer it is vniformely execu­ted, it is without all blemish of vniustice, as in mankinde it is vniformely apparant, that euery man is inclined by nature to prouide for posteritie. But when some prouide too much, some too little, some with pinching from themselues, some in seeking to make their children farre greater then themselues, this is not vniforme, this therefore is vniust: neyther doe I dissent from the opinion of them that thinke the lawes of Moses doe imitate and resemble the simplicitie, inte­gritie, and vniformitie of the lawe of Na­ture.

The lawe of Nations is that which na­turall reason hath propounded and appoin­ted in common to all men: I doe not saye that nature hath appoynted, but nature with reason, or naturall reason. And it is also se­uered from the lawe of nature, because it is appropriated onely to men, yet commu­nicated to all nations, for there is no na­tion which vseth it not. The distinguishing of Demesues, the diuersitie of Realmes and [Page 64] Kingdomes is parcell of the lawe of Na­tions. Likewise warres, contracts, and such like, are braunches of that lawe, the defi­nition of it may be shortly this, a lawe in which all Nations doe consent. But this pleaseth not Bodinus, for saith he, all nations haue consented to Idolatry, yet who will ac­compt that a lawe?Bodin. lib. de Repub. But this definition is meant of humaine things, not of diuine, for who will so vnderstand it? For all the Na­tions of the world may not prescribe a lawe to God, nor capitulate any thing touching these thinges that concerne him, hee is a law-maker for hymselfe, and therefore hath sayde Quod praecipio tibi hoc tantum facito, non addas, nec minuas. Deuter. 12. v. 32 But in humane things that whiche all Nations doe allowe for a lawe that is for gouernment and publique respect (for which intent the worde lawe is vsed in the definition) that is to be re­ceyued and acknowledged for the lawe of Nations.

The lawe Ciuill I doe not take so large­ly as some doe interpret it, to bee a lawe which euery citie or people hath appropria­ted to it selfe: for though the originall deno­mination of it came from this word Citie, yet by that was meant onely one Citie where that lawe was practised and obserued, [Page] and that was the auncient citie of Rome, for which cause the Ciuil law is at this day called by some ius Romanum. Alber. Gentil. lib. lecti. & epi­stolar. 2. c. 14. And though many Cities and Commonweales be now gouerned by that lawe, yet therefore it can not be sayde to be ius Ciuile, sith it had the name before.

The Common lawe is that which by common vse or common reason is made, not by common assemblie, as Statutes or Actes of Parliament are established: And it diffe­reth likewise from statute lawes in this, that in such lawes there are many times prouisoes and exceptions of certaine persons. But the Common lawe bindeth all alike, and is not applyed and vsed as a plaister to one part, but as a strong purgation to all the partes of the bodie politique, and it may challenge a thirde difference, for that the Common lawe ariseth from the people and multi­tude, but the Statute originally from the King, because before euery Parliament, writs of summons issue from the King for prepa­ration to that solemne meeting of the States. Againe, the King may dispense with penall Statutes,34. H. 8. 52. Dy. by clause of non obstante, but hee may not alter the course of the Common lawe,11. H. 4. 73. though the worde of Common lawe extende by the generallitie of it, to any [Page 65] lawe that is commonly vsed in any place, yet vse hath restreigned it to the Law of this realme of England, to the dominions of which it is confined, & beyond this neast streatcheth not her feathers.

The customary Law is nothing els but a custome long time continued, which may bee thus more fully defined, Custome is a law not written, by the manners and vsage of a certain people or the greater part of them vpon good reason and iudgement, begun, and continued, and hauing the force of a Law. I said (a Law not written) because the bare memory of man is the register of customes. I said by the man­ners and vsage &c.) because no custome doth grow without the consent of certains people or the maior part of them▪ I said (begunne vp­on good reason and iudgement) because such things as are introduced by error, are not to be obserued. I said (continued) because with­out diuturnitie of time, custome can haue no force or strength. I said (hauing the force of Law) because it must bee of equall power in the place where it is vsed with the Law. Acu­stome against the Law of nature is of no force, because naturalia sunt immutabilia; A custome against the Law of nations is of no validitie, because that is grounded vpon the Law of nature. A custome against the Law positiue is either against publi [...] v [...]ilitie or priuate [Page] profit, if it be derogatorie to publike vtilitie, it is void: if it be onely against priuate profit it is good and effectual, and a custome once dis­allowed and defeated by Law, cannot be re­continued or reuiued by any meanes. It hath bin questioned how many Actes or deedes of men be required to bring in a custome, and the opinion of the most learned hath bin, that so many actes and so notorious, that the thing which is done may be intimated into the notice of the people, so that it may seeme to be allow­ed by the secrete consent or likeing of the peo­ple. But one notorious act cannot induce a cu­stome, for that is against the name of a custōe: for consuetudo is nothing els but communis as­suetudo. It hath bin also doubted whether an act contrarie to a custome do interrupt the cu­stome, to which it may be thus answered, ei­ther the custome was not yet perfitte, and then it doth interrupt the custome, for the consent of the people did not yet euidently ap­peare, or els it was complete and perfit, and then it cannot be defeated by one act, but by so much time and in such maner as it was induced.

Ius merum is that Law which hath no mix­ture nor regarde of circumstances, but groun­deth a rigorous conclusion vpon thinges done without further examination how or why they were done, as if a man sell a lease of lande [Page 66] for yeres, and certaine cloth for tenne pound, the contract is entier, and if the title of the vendor be not good as to the lease, yet he shall haue the entire summe though the vendee be dispossessed of the lease at the time of the ac­tion brought for the money,24. H. 8. Br. Contract 35. 7. H. 7. 4 because in strict reason the contract was entire, so if a man sel his owne horse, and the horse of I. S. to A. for tenne pound, and I. S. taketh away his horse, yet an action of debt will lye for the whole summe, because the contract was in it selfe entire.30. H. 8. Br. Apportion 7 But if a man reteigne one in seruice for a yeare, for tenne pounde to bee payed at two feastes of the yeare, and the Master dyeth after the first feast, and before the latter, the Seruaunt shall haue his wages but for the first Feaste, because the contracte was at the first time appor­tioned.27. E. 3. Br. Apportion 6.

The Law which is termed aequum & bo­num, is that which doth mildely interprete, a­mend, and mollifie the hard and rigorus spea­ches, and censures of the other Lawes: and is sometime sharpe and seuere, where the other Lawes are remisse and conniuent: as may ap­peare by that saying of Salust, sentencing the proceeding of the Romaines in a matter of estate fit reus magis aequo bono (que) quam iure gen­tium Bomilcar comes eius qui Romam [...]ide publi­ca venerat, & this is not so much comprehended [Page] in writing, as in the true vnderstanding of that which is written. It is necessary by the iudgement of an other Law, which saith Etsi nihil facile mutandum est ex solennibus, tamen vbi aequitas euidens poscit subueniendum est. l. 183. de Reg. iur. and againe iustus iudex aequitatem solutius se­quitur. l. 14. de reg. iur. § de relig. This though it haue place somtimes in the precepts, rules, and cases, of the ciuil and common Laws: yet it hath more affinity with the Law of nature, and the Law of nations, which are ignorant of the knots, and intricate points of these aforesaid Lawes.

Now that we haue discoursed of these seue­ral Lawes, it remaineth that we should shew what things are the principall obiects of the Law, which may be reduced to two heads, for either they are real or personall. That which is reall, is either land, or that which issueth out of land: land is either firme and fixed earth, or that which is immediatly and cohe­rently annexed to the earth, as houses. By the differences of this diuision a pischarie or fish­ing is excluded, whether it be libera piscaria, that is a libertie of fishing in an other mans pondes, or waters, which he hath in common with others. For xx. persons may haue a fish­ing after that sort in one riuer, and it is there­fore called libera because none may disturbe them to whom the fishing belongeth:17. E. 4. 7. Or seperalis piscaria, which in our bookes hath se­uerall [Page 67] significations, for either it may signifie a seuerall fishing, which one man alone hath in an other mans soile.18. H. 6. 29. Or els where a man hath a seuerall fishing to himselfe in his owne ground, and so it is a thing compounded of water and of earth, and therefore it is said, that where a graunt is made of a stagne or pis­carie, the land passeth.4. E. 3. 3. Feoffem̄r 79 And in a Formedon brought of a gorse, which in Latin is called gurges, a gulfe or d [...]epe▪ Yarmouth, wherein fishes are commonly taken, the demaundant shall recouer the land and soile it selfe.14. E. 3. Formedon 34. And it hath bin adiudged that a fishing so taken lyeth in Tenure.40. E. 3. 44 And a writ of Aiell was brought of a fishing as a thing lying in de­mes [...]e. 20. E. 3. Bre 685 And also of a stagne or poole:Temps E. 1. Briefe 861 But it cannot be termed land, because the water is not coherently fired to the soile, but other­wise it is of an acre of lande which is coue­red with water: for though that be ouerflow­ed with water, yet it is not naturally ouer­flowed, as a ponde or fishe-poole is.18. E. 4. 4 And therefore it is said 12. H. 7. that a man may haue a Praecipe de vna acra terrae cum aqua coo­perta, or de vna acraterrae generally at his elec­tion. 12. H. 7. 4 But a tenement cannot be said to bee freehold, except it touche the earth, and there­fore a chamber built vpon a hallor parlor, can­not be said to bee freehold, because it cannot be perpetuall, for the foundation may perishe, [Page] and for that cause it cannot be demaunded by plaint or Writ.3. H. 6. 1. Plaint 1 [...]. Yet 9. E. 4. an exchaunge was made of lande for a chamber,9. E. 4. 40. but that prooueth it not to be freehold, for an exchange may be of things of diuers natures, as of land for rent.3. E. 4. 10. And so of a rent for a common.9. E. 4. 21. A Castell whether it bee a thing either of it selfe, or parcell of a seigniory or Mannor may well be called land or freehold.7. H. 6. 36. For though land may not be parcell of land no more then one Leete or Hundred may bee parcell of an other.3. Mar. 1. Com̄ 168. Hilles cas. 7. E. 6 Com̄ 80. Pa [...]idg. cas. 23. H. 8. Br. [...]. 53. Yet land may be parcell of a Manor. 4. E. 4. 16. 42. E. 3. 22. 44 E. 3. 40. Feoff. 53. lib. [...]undā. leg. fo. 70. And a parke may be parcell of a Mannor.3. E. 3. Br. Iurisd. 39. And land may be parcel of an Honor.26. Ass. pl. 60. And of a Castle.4. E. 4. 17.

It is nowe shewed what may properly be called Land, and it is not impertment to de­clare how many sortes of land, which we haue before called firme ground, may be demaun­ded by Law, of which the Law hath a seueral contemplation. Land therefore as it is subiect to the consideration of Law is sixefold, Arua, Florida, consita, compascua mineralis, in frugife­ra. Arua is the arable ground which is tilled with the Plough. Florida, the garden ground, which procreateth flowers, Herbes, & all such thinges as the Bee doth feede vpon. Consita, is the wooddie ground which is throughly re­plenished, with trees, plants, shrubbes, and such like. Compascua is that which bringeth [Page 68] forth grasse and fodder. Mineralis is that, wherein mines are conteigned whether they be regall mines, as mines of Gold or Siluer, or baser mines, as brasse, leade, copper, tinne, coales, or the like. Infrugifera is that which is barren, and cannot be helped by manurance as the soile where rushes, weedes, ferne, and such things doe grow, and it is good to know the diuersitie of these seuerall sortes of grounde, that when such thinges are to be demaunded by writ, they may be demaunded by their pro­per names and kinds, and therefore if a feoffe­ment be made of two roodes of land, and after a house is built there vpon, and part of it is be­come medowe, parcel pasture ground, and par­cell wood, the demaund must be by the name of a house, medowe, pasture, and wood,3. H. 6. 8. and there is a writ in the Register, de minera plum­bi & cuiuscun (que) generis metalli cum pertinentijs. Regist. 165 and ruscaria the soile where rushes do grow must be demanded by number of acres.16. Ass. pl. 9. And where a stagne hath bin, or land couered with water, if the water be turned out of the course or dried, the land may be demaunded by the name of medow.33. E. 3. En­tre 80.

That which issueth out of land, or the pro­fits of land are of three sortes, Naturall, In­dustriall, and Artificial. The Naturall profits of land are such as doe rise by the force and benefit of Nature principally, and not by [Page] the diligence and labour of man, as apples, hearbes, trees, and such like. Industriall pro­fits are such as doe principally require the di­ligence and culture of man, which vnlesse it be continually applyed, natura nihil operatur, as corne, hoppes, woad, saffron, and such like. Artificiall profits are these, which are reser­ued, graunted or issuing out of land by the Acte of man, and the approbation of Law, as a common of pasture, a warren, a rent, and thinges of like sort. Common of pasture is of fower sortes appendant which is belong­ing onely to arable grounde, or to land that consisteth as well of arable ground, as of o­ther thinges, as a Mannor or measuage, but the appendancy doth principally grow by rea­son of the arable, and therefore it belongeth to such beastes onely as doe manure or marle the grounde, as horses, oxen, kine, and sheepe.37. H. 6. 34 And if a man haue common to certaine ara­ble landes in one Village, hee cannot vse the Common with beastes that manure his arrable in an other Village.10. E. 3. 56 And this ought to bee intended of auncyent arrable ground, not of land newely improued.10. E. 2. Cō ­mon 22. 5. Ass. pl' 2. For continuance of time immemoriall maketh the appendancy, wherefore if the arrable land to which common is appendant, do by purchase come into the possession of the owner of the soile, in which the common is to be taken, the [Page 69] common is extinguished in his person: But if after the tenements be seuered by alienation as they were before, the common is reuiued by some aucthoritie,4. E. 3. 45. 17. E. 2. Com­mon 23. because the same aun­cient arable land to which before it belonged still continueth: But by some it is otherwise, because being once extinguished it cannot be de nouo and in an instant made appendant.14. H. 4. 2.

Common appurtenant is where a man prescribeth to haue common of pasture be­longing to his land with all maner of beastes, it differeth from a common appendant in this, that a common appendant is onely to be taken by such beasts as manure or marle the ground, and by such number of beastes as will serue to manure or marle the ground, to which the common may be claimed, and belongeth onely to them as long as they are demurrant vppon the land: But a common appurtenant may be taken by all maner of beastes.37. H. 6. 34. 9. E. 4. 3. Likewise a common appendant must be onely claimed by reason of land which may be marled or ma­nured: but a common appurtenant may bee claimed by reason of a mesuage or house.22. H. 6. 43. 4. E. 4. 29. Furthermore a common appendant groweth onely by continuance of tune, and the essence of it is prescription ioyned wyth appendan­cie, 26. H. 8. 4. 5. H. 7. 7. 4. H. 6. 13. But a common appurtenant may bee graunted at this day, and springeth vp in an instant.26. H. 8. 4. 15. Assis. pl. 5. Common 13. And a common appendant can not [Page] be seuered from the land to which it belon­geth: 5. H. 7. 7. But a common appurtenant may be seuered:26. H. 8. 4. And they differ in this, that a com­mon appendant must be vsed and taken, accor­ding to the rate and quantitie of ground, in re­garde of which it is granted or claimed.15. Assis. pl. 5. But a common appurtenant may be claimed for beastes sans number: for by the opinion of Monbray none shall haue a writ of Admea­suremēt of pasture, but he that hath a common appendant:18. E. 3. 30. So that it may be probably col­lected, that a common appurtenant because it cannot be admeasured, may be wel enough sans number: And it may be likewise to a certaine number of beastes, for if a man at this day will grant one a mesuage with a common appurte­nant for tenne beasts, I doubt not, but this is a good common appurtenant to the mesuage.

Common by vicinage is where two town­ships or moe do entercommon, and haue enter­commoned from time out of mind, which is not to be vsed, by putting the beastes of the inhabitants of one towne, into the landes of the inhabitants of an other towne, for so they may be distrayned damage feasant: But they must put them in their owne fieldes, & if they stray into the fieldes of the other village, they must suffer them to be there, and they must put in their beastes, hauing regarde to the freehold of the inhabitants of that village [Page 70] where the common is to be vsed.13. H. 7. 13. 15. Elizab. 316. Dyer. 16. E. 3. Com­mon 9. 22. H 6. 51. 6. E. 6. 70. Dier. This kind of common Mast. Littleton maketh appen­dant, 7. E. 4. 26. but by other aucthoritie it is a feueral and distince kind of common.

Common in grosse is where a man clay­meth to haue common for all maner of beastes, whether the number be certaine or vncertaine by speciall graunt in writing, or by prescrip­tion in him that claymeth or his auncestors, or they whose estate he hath not by reason of any particuler land: & this common may be vsed by the beasts of a stranger, which the proprietarie of the common may giest, as we tearme it.11. H. 6. per Babing. Mart. & Paston. 45. E. 3. 25. As­sise 61. 36. Ass. pl. 3. 15. Ass. pl. 5. Perkins tit. Graunts.

A Warren is a profite likewise which may be taken out of other mens ground by pre­scription, 30. H. 6. 28. Dyer. and if the owner of the soile [...] any one by his commaundement; or as his seruant doe come vpon the soyle, and do [...]hase the Co­nies, he cannot iustifie the chasing,34. H. 6. 43. though he may iustifie his entrie into the ground.3. H. 6. 12. And a rent is also a profit issuing out of the soyle of a stranger, and sauoureth of the nature of the land; out of which it issueth & therfore if rent issue out of land in auncient demesne, it is aun­cient demeshe, & so it is of rent granted out of land in Gauelkind, it shalbe deuided as the lād it selfe:4. E. 3. 53. 14. H. 8. 5. And so it is of rent graunted out of land deuisable by custome, though the rent bee graunted but of late time.22. Ass. pl. 78. And so if rent be receiueable out of customarie land, [Page] as borough English, or where dower is to be had of the halfe part, and such like, the rent shall be of the custome and nature of the land, and therfore in the demaunde of such rent by Praecipe, or in a Repl [...]in, the tenure by aun­cient demesne of the land is a good plea.14. H. 8. 5. And so if land in taile be deuided amongest parceners, the [...] reserued to one of the [...] parceners shall be in [...], and of the same condition as the land was.2. H. 7. 5. 15. H. 7. 14.

Parsonall thinges [...] thinges either in pos­session, or in action: Thinges in possession are either goodes or chattels: the name of goodes is naturall and ciuill, by the naturall signifi­cation all such thinges are comprehended vn­der the name of goodes, which may profite.1. 49. de verb. signific. But as the name of goodes is taken ciuilly, it stretcheth to the whole he ape and bodie of a mans wealth, together with the charge and deductions: the reason of this differenceis be­cause nature conside [...] thinges as [...] they are: but a common weale or citie after such sort as is most expedientAlber. Gen­til. lib. 4. Epist. c. 7. And though the charge which followeth goodes do de [...]race somewhat from the value and estimation of the same, yet because it is to be discharged and satisfied out of the goodes, it is therefore ioyntly reckoned and considered with the goodes themselues.

Chattels which in the common Law are tearmed Catalla, are diuersly taken, for the [Page 71] profits of land if they be gyuen generally vnto the King by acte of law, they may be called Chattels, and therefore the profits and issues of the landes and [...] of them which flie for felony are forfaited vnto the King, vn­till such time as they be acquited, and that by the Statute of Praetog. cap. 10. which sayth that the King shall haue omnia Catalla talium fugitiuorum, and vnder the word Catalla is comprehended the corne which was growing vpon the land, at the time when the forfey­ture of the goodes did begin to take place,3. E. 3. Co­rone 3. 4. And if a man be outlawed in an action of debt, and the outlawrie be retourned, so that the writte issueth to the Escheator to seise the goodes, chattels, and land of the partie out­lawed, the issues of the land shall be taken to the kinges vse vntill he haue sued his Charter of pardon:8. R. 2. Su­persedeas 19. for an outlawed person shal not forfait any land, but the profites onely, as rent and corne, if he be outlawed in a perso­nall action: Otherwise it is if he be outlawed of felonie, for then the King shall haue the es­cheat of the land, or the Annum, diem, & vas­tum. 9. H. 6. 20. But if the profites of land be gene­rally graunted by the act of the partie, then they are the substance of the land and doe not passe without liuerie: And if a man graunt the profites of land, the land it selfe passeth.14. H. 8. 5. 45. E. 3. 90. 4. Elizab. 210. Dyer. And therefore it hath bin held by Fortescue [Page] and Danby Iustices, that tenant in fee simple may graunt vesturam terrae, and the grauntee shall haue it after his death: But the te­nant in taile, for life, tenant in dower, and tenant by the curtesie cannot make any such graunt, but if they dye the graunt is determi­ned. 37. H. 6. 30. And if a feoffement be made of land vpon condition that neither the feoffee nor his heires shall take the profites, the condition is voide, and the feoffement simple and abso­lute, 21. H. 7. 24. and in such cases the profites of land may not be tearmed Catalla, no more then the landes themselues: But vnder the word Chat­tels, a lease for terme of yeares is comprised.39. H. 6. 35. And likewise a right of action for goodes: as if goods be taken wrongfully from a felon:6. H. 7. 9. Or when one is indebted to a felon by bond:19. H. 6. 47. Or when he is accomptable to a felon by rea­son of any receipt, or otherwise.28. E. 3. 92. et 50.

Thinges in action are such in which a man hath neither propertie nor possession: as if a man doe owe to an other xx. pound vpon a wri­ting obligatorie, though he haue a propertie and possession in the1. H. 7. 15. writing or charter, yet the summe contained is a thing in action, in which he hath neither propertie nor possession: and so it is of an Aduowson when the church is voide of an incumbent: for the patron can not graunt it to any other, because then he should graunt but fructum aduocationis, which [Page 72] is a thing rather imagined by law, then sub­sistent by nature: and therfore the patron can not truely be said to haue propertie or possessi­on in it. But though such thinges be to some intent merely in action, yet in some cases they are taken as thinges vested: and therefore if a man be seised of an Aduowson, and the church become void and he dieth, his executors shall present, and not the heire,Fitz. Na. br. 34. for the aduowson in regard of the executors was a chattel vested in the testator. The King may graunt things in action,2. H. 7. 8. and so may a common person in some cases: As if a man bring an action of debt against I. N. and the plaintife is indeb­ted to me, and promiseth me that if I will ayde him against I. N. that I shall be paied out of the summe in demaunde: there it is law­full for me to ayde and maintaine the plaintifie against I. N, because by the promise I haue interest in the summe demaunded.15. H. 7. 2. And where a man is indebted to me in xx. pound, and an other oweth him xx. pound by obliga­tion, he may assigne this obligation and debt to me in satisfaction: And I may maintaine suit for it in the name of the other.

A Table of certain words in the Interpretation whereof the Common Law of this Realme and the Ciuill Law doe seeme to agree.

A.

ACcusatio A bill of presentment, is a regular fourme of complaint, whereby offences, are opened and punished.

Acquisitum purchased, that is said to be whereof the propertie is translated from one to an other.

Affines are the kinsmen of the husband and the wife by mariage, so called, because two Kindreds which are diuerse one from the other, are coupled by marryage, and one of them commeth to the borders or marches of the other kindred.

Ad nos pertinere is said that which doth belong vnto vs, eyther by way of propertie, or by way of possession, or by charge, or by ad­ministration.

Aedes, plural: a house consisting of diuerse rowmes, (for domus may consist onely of foun­dation, wall, couer) as the integrall partes, or as some briefly say, which consisteth of soyle and superficies,

[Page 73] Aestas sommer, a part of the yeare, which be­ginneth at the equinoctial of the spring, and endeth at the equinoctiall of Autum, and so sommer & winter are deuided by vi. moneths.

Annona vittaile, is not referred onely to corne, but to the meate of the shambles, as well to fish as flesh.

Aperta vis, open force, which is manifest and euident, and doth not receiue any excuse of simplicitie.

Arborvento deiecta, hath not now the name of a tree, but the name of wood. Arbor dum crescit, lignum cum crescere nescit.

Area, a floare is a vacant place, therefore cal­led Area quasi exaruerit, and were not able to bring forth any thing, it hath bin taken to be such an emptie place as doth lye discouered, locus ab aedificio purus, and hath no superfi­cies: it is called a plot of groūd, court or yard.

Argen [...]um siluer, it is of three sorts, infectū, factum, signatum. Infectum is that which is vnpollished and not adorned with any particu­lar forme being in the ore, or bullion, newly seuered and singled from the ore. Factum, is that which is beutified with some particuler forme, of which kind is a siluer cuppe, a siluer goblet, a siluer bowle, or a siluer mazard. Sig­natum is that which beareth some speciall I­mage or impression, & such is the siluer that is coined & accompted currant, Argentum factū [Page] must be described by the kinde or shape, In­fectum by the weight, Signatū by ye number.

Arrestare, is by the authoritie or warrant of the lawe, to hinder that either a man or his goodes bee at his owne libertie, vntill the lawe be satisfied.

Artifices, artificers, are they which sell things laboured by them, and by their labour reduced into a particular forme, as Shoma­kers, Smithes, Glouers, Taylors and Wea­uers, but artificium if it be largely taken, ex­tendeth to ye knowledge of euery arte: artifex and opifex differ, for in the one there is labour and iudgement, in the other labour only.

Assultus, an assault is a violence done to a mans person, by the person of an other man.

B.

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

C.

Carcer is taken two wayes, for it is eyther locus custodiae, or locus paenae.

Cauillatio when a man turneth his speach ab euidenter veris, ad euidenter falsa.

Cella because there we do celare, we do hide that which we would keepe secret or close.

Ciuitas, a citie: it is taken materially, and formally: being vnderstoode materially, it doth signifie a multitude of houses made of stone and timber, being formally taken it is ciuilis societas quasi societas simul viuens, and [Page 74] not viuens simplie, but viuens bene, for as Cicero saith, ciuitas sine legibus is corpus sine anima, and therefore Aristotle sayth, non con­cedimus vt homo imperet sed ratio.

Cliens, is he that is in suite, so called quasi colens, and hee who dealeth for him in the cause is called patronus, quasi pater.

Codicillus, the declaratiō of a mās last wil, which without the iust solemnitie of a testa­ment a man ob impedimenti necessitatem is inforced to write, but now the vse of codicills or testaments are without any necessitie con­founded, which is contrary to lawe, for a [...]odi­cill ought to serue necessitie, & not a rash onset.

Cognatio kindred, it is deuided into three parts; 1. into parents, 2. into childrē, 3. into cosins. Parents are they of whom we are be­gotten, as father, mother, grandfather, grand­mother, and these which are in degree aboue them. Children are they which are begotten of our bodies, as sonne, daughter, grandchild, and such as he vnderneath them, Et nati nato­rum et qui nascentur ab illis. Cosins are they which haue neither begotten vs, nor bin begot­ten of vs, but haue a common roote and origi­nall with vs, as brother, sister, vncle, aunt, and such as do discend from them.

Colludere, is in fraudem tertij conuenire.

Commenda, the custodie of a Church com­mitted and commended to some.

[Page] Commodare is to graunt the vse of some thing for a certain time, there is difference be­twixt commodare & mutuo dare, because cō ­modare is to lend, to haue the same againe, as bookes, apparel, and such like, but mutuo dare is to trust, hoping to haue the like againe, as money, corne, salt, spices, and such like.

Compromissum, is the power that is giuen to the arbitrator, so called because both the parties doe promise to obey the opinion of the Iudge, & therfore he is called compromissari­us index to whom the matter is referred.

Communitas, a comminalty, is societas ho­minum communi lege viuentium.

Conditio, when a thing dependeth super ca­sum incertum which may tende eyther ad esse or ad non esse.

Confessio, is double: either iudicial, or extra­iudicial, iudiciall is that which is done before the Iudge, extraiudicial which is done in pre­sence of good and honest men.

Consentire, is to meete in one opinion.

Constitutiones, Iudgements, rules and a­wardes concerning seueral matters whereup­on this verse hath bin made.

Quatuor ex verbis virtutem collige legis,
Permittit, punit, imperat, at (que) vetat.

Controuersum ius, is that which is on both sides doubtful: certum ius is that which is cer­tainly determined & is called positiue Law.

[Page 75] Copulatiua the coniunction copulatiue is taken after two sorts, either in a deuided sense, or in a compounded sense, in a deuided sense as when I say, Sir Robert Booke, and Sir Iames Dyer were Lord chiefe, Iustices of the Cōmon pleas, for they were not chiefe Iustices toge­ther, but at diuerse times: in a compounded sense, as when I say two & three do make fiue.

D.

Debito is he of whom we may against his wil exact money.

Decimae are of three sorts praediales, perso­nales, and mixt praediales are they which arise of farmes or lands, as corne, hay, and the fruits of trees: personal which are due by personall labor, as by some trade, trafick, or mistery, mixt of which it may be doubted whether they be predial or personal as wool, lambe, milke &c.

Defensio, is the auoiding of a surmised & pre­tended offence.

Delegatus a delegate, to whom a cause is cō ­mitted to be determined and ordered.

De plano, vel sine figura iudicij, vel sum­marie.

Deprehendere, is to take a man in ipso facto, so that he can neuer flye, nor denye the facte.

Discendere to discende or to spring of ones body, hereupon they which are borne of vs are [Page] called by the name of discendents, which with them that ascend make the right line, and the ascendents and discendents cannot marry to­gether, wherefore if Adam were now liuing he could not marrie a wife.

Dicecesis, the gouernment of a certaine prouince by the Bishop, for as a territorie is so called, quatenus iudex ius terrendi habet, so a diocese as farre as a Bishop hath ius ad­ministrandi sacra.

Dispensatio, a release of common right, ei­ther ex causa vtilitatis, necessitatis, or ingen­tis praerogatiuae meritorum.

Diuersa, such things whose subiect is not alike, or whose definition is not alike.

Dominium is a right to dispose perfitly de re corporali.

Domus instructa, a house furnished, if a man deuise such a house the household stuffe passeth, but not the wine that is within the house, because by common intendement a house is not furnished by wine.

Dubia causa, is that which is but semiple­ne probata.

E.

Error, an opinion, whereby that is approo­ued and allowed to be true which is false, and that to be false which is true, and error may be two wayes, eyther in iure constituto, or els [Page 76] in iure quod quis in suo habet negotio, the one is an error in lawe, the other in facto.

Euanescit actio, the action doth faile, or abate, euanescit actio, by the power of the lawe, or of the Iudges, remittitur actio, by the will of the plaintife.

Executor, an executor, which is after three sorts, executor testamentarius, executor le­galis, that is to say the ordinarie, executor da­tiuus, the administrator.

Election, is the certainetie of our will, it may be of persons, or of thinges, places, or times: Of things, as if a man should pay a summe of money, or els a horse or a hawke: Or of persons, as if he should pay it to I. S. or to I. N. Or of places, as if he should pay it at London, or at Lincolne. Or of the time, as the first day of April, or the second day of May.

F.

Falsitas, falshood is immutatio veritatis cum doto & damno alterius, the chaunge of truth with falsehoode to the deceiuing and endama­ging of an other man.

Fama, is a common report proceeding from suspition, and published by the voices of men, and it differeth from rumor, because that is a diuerse whispering of men, which is not so effectuall as Fame. Fama constans is that which is dispersed abroade neither by men [Page] vnknowen, nor of light credit, nec ignotis nec improbis.

Fide [...] is he which bindeth himselfe for another, quasi inssu alterius ponens fidem suam.

Fortuitus casus, a meare chaunce which by mans counsaile, care, and diligence can ney­ther praeuideri or praecaueri, be fore-seene or foreclosed.

G.

Generalis lex, a general law which compre­hendeth all cases, except such as be vnlawfull, and vniust. For there is nothing more absurde then to draw a iust Lawe to an vniust inter­pretation.

Germani fratres are they which are of the same Father & Mother, Consanguinei which haue the same Father, but not the same Mo­ther, Vterini which haue the same Mother, but not the same Father.

Gestores negotionū, factors or procurators be of three sorts, voluntarij which gratis and of their owne accord do regard the busines of their friend: Necessarij which by obligation of their office doe follow matters: Quasi ne­cessarij, which haue some colour to deale in matters.

Graeca mercari fide. i. pecunia numerata with money paied in hand.

I.

Illegitimi bastardes, whereof there be three sortes, Incestuosi which be begotten of kins­men and kinswomen within the degrees pro­hibited: Nefarij, which are begotten of des­cendents, the chyldren of the same parent: Spurij, or Adulterini, which are borne in ad­ulterie.

Iniuria whatsoeuer is done against law and right, whether by wordes, as by slander: or by deede, as by violence of hand.

Inops sine ope without helpe, which hath no wealth nor maintenance, whereby he may helpe himselfe.

Instaurare, is to bring a thing into his four­mer estate.

Insula, a plot of ground compassed on all sides with the sea, quasi in fato posita, it is of two sortes: Perpetua, and Natiua. Perpetua, which hath bin from time out of minde part of a Prouince: Natiua, which hath bin lately dis­couered by the ebbe and drought of waters.

Interlocutoria sententia, which doth not de­fine or determine the controuersie, for that is called sententia definitiua: an Awarde.

Iudex limitaneus, which hath a limitted in­risdiction, as the Lord in Court Baron who onely holdeth plea of a summe vnder xl. shil­linges, and within the precinct of his Man­nour.

[Page] Iuramentum an oath, it is the affirming or denying of a thing with religious assertion, or attestation, and it is double: Extraiudicial or Iudicial. Extraiudicial, as Iuramentum con­uentionale, when vppon a bargaine one doth sweare to an other. Iudicial is of two sorts, Necessarium, & Suppletiu [...]m: Necessarium, which is ad litem aestimandam, when witnes­ses are produced by the parties. Suppletiuum, when the Iudge doth enforce the partie him­selfe to sweare for want of other proofes.

Inseperabile, that is said to be which is so inherent in the subiect, that it cannot be remo­ued, but they do either stand together or fall together. A thing may be said to be indiuidual or inseperable in many respects, 1. according to the fourme required in the act: And there­fore if three be bound iointly, they must be sued iointly, 2. by reason of necessarie depending, and therefore the principal being defeated, the accessorie is also destroyed, because it cleaueth inseperably vnto the principal: and therfore if the marriage be not lawfull, the endowment cannot be lawfull, 3. by the meaning of the parties: as when a submission is made to two arbitrators, it is not to be imagined that the parties had an intent of seuerance, 4. by the nature of the thing: as when a thing will not suffer a particion: as a seignorie in grosse, a common, a condition, and so a iurisdiction is an [Page 78] entier thing: and therfore if a man will bring an action in a base Court of a debt of 4. li. it is not good for thirtie shillinges, or a lesse summe: for a Iudge or officer hath a precise power of the Law, and if he passe his iurisdic­tion, his sentence or act is voide.

Integrum is that which is compounded of diuerse partes, for partes compacted & ioyned together doe make the whole, but an entier thing may be diuersly: for it may be eyther totum numerale consisting of many numbers lincked together, 2. totum vniuersale, as the general nature wherof the particulers ar com­prehended: as homo of animal, auis of bru­tum, 3. totum integrale which is made whole and entier by many partes, and it is of two sorts, Heterogeneū, and Homogeneum: He­terogeneum the partes whereof are not of the nature of the whole thing, as a house which doth consist of soyle, stone, woode, morter, & co­uer. Homogeneum which is of the same na­ture with ye whole, as water, fier, earth, wher­of euery part hath the name of the whole.

L.

Lacus is that which hath perpetuā aquam. Stagnum that which hath water at sometime, and is sometime drie. Fossa a receptacle for water made by mans hand.

Lana, wolle, which may be cloath, but yet is not wrought in cloath. And if a man [Page] by his will do deuise his wolle to any, be it wrought or not wrought, dyed or not dyed▪ or be it spunne, it is comprised vnder the name of wolle, and it is called by the name of Volle vntill it be made cloth.

Littus, that place to which the greatest floude of the sea do [...]h come.

M.

Maiestas, a soueraigne honour: Maiestie is said to be the daughter of honor & reuerence.

Marinum et Maritinum do thus differ, Ma­rinum is that quod Mare incolit, which lyueth in the Sea, or which is bredde in the sea, Ma­ritinum quod Mare accolit, which is adioy­ning, or adiacent vnto the sea.

Mercator, a Merchant, is not as some think tearmed a Merce, but of the word Mercor, which signifieth to buy, and they are properly tearmed Mercatores, qui res emunt quas in eadem specie cariús vendant.

Moneta, à monendo, Money, so tearmed, because by the impression of the stampe it doth giue vs notice, either of the prince whose it is, or the price which it beareth: It taketh Le­gem valoris, the rule of the value of the superi­our, & therefore it cannot be abased or refused, but by the commaundement of the superiour.

Mortua res, that is said to be by which a man is not richer.

[Page 79] Motu proprio, ex certa [...]scientia, de pleni­tudine potestatis, are praegnantes clausulae, clauses of importance, against which none may be heard.

Mutuum, quasi ex meo [...]uum.

N.

Narratio, a declaration of a matter eyther ore tenus▪ or in forme of law: If it be ore te­nus, it is called a motion, & thereof it is said, qui bene narrat, bene impetrat: If it be in forme of law, it is a declaration grounded vp­on a writ, contayning the whole state of the matter, as the plaintife supposeth it.

Naturaliter possidere he is said, which pos­sesseth a thing corporally, & taketh the profits of the thing possessed, and this of the common Lawyers is called possessio in facto: But if a mans father die seised, & the sonne doth not en­ter, nor actually take the profites, neither doth any other disturbe him to take possession, this is called a possession in law, or eiuilis possessio.

Negotium meum, that is said to be, cuius [...]erum & damnum ad me pertinet.

O.

Obuentio is a kind of re [...]enew: it differeth from Reditus, being strictly taken, in this, that obuētiones are conting entiū ▪ reditus certorū.

Oculis res subijci dicitur when it is plaine & manifest, it is well said of Erasmus, ad cogni­tionem magis faciuntaures, ad fidem facien­dam [Page] certiores sunt oculi.

Officialis, an Officiall, who in a certaine part of the diocesse is the Bishops deputie.

Opera labour, it is double, Officialis, and Artificialis: Officialis, is that which is spent & bestowed vpon the diligent attendance done by the seruant to the Master. Artificialis, is the labour of the trade, as Printing, paueing, feeling, graueing, embrodering, & such like.

P.

Pactum is the consent of two or more in a matter which pleaseth both parties, Pollici­tatio is when there is not the consent of two, but onely one agreeth. Pactio nuptialis is a Matrimonial contract. Pactum retrouendēdi is when the vendee couenanteth, that if the vendor or his heires or executors will within a certain time pay so much money, as the vendee doth pay, that then he shall haue the land again, and be in his former estate.

Palam fa [...]tū is that which is done opēly. Pub­lice factū is that which is done corā populo.

Paries, a wall▪ thereof there be diuerse kindes: Lateritius which is made of clay, Tes­taceus which is made of bricke, Coementar [...]us which is made of lime, stone, and water ming­led together, Cratitius which is made of wood, boardes, or boughes, platted together.

Paraecos, a parishioner, an inhabitant in a certaine place, who hath brought his houshold [Page 80] to a certaine place, to reside there.

Praetor maior, he Maior of a city, as Rhodigi­nus saith: for others ar called Praetores minores.

Priuilegium is ins [...]singulare, whereby a priuate man, or a particuler Corporation is exempted from the rigor of common Law, for that which is now called proprium, hath bin called of olde writers priuum.

Proprium that which doth so belong to one that it is not cōmon to an other, & though that wherein we haue a ioint propertie with others may be called nostrum: yet it cannot be called propriū, for propriū doth not admit any com­munion, but proprium & suum be equipollent, and of the same sense.

Puer hath three significations, either it sig­nifieth the estate of a man: as when we call ser­uants pueros: Secondly the sexe, as when we call a male child puerum: Or els the age, as when we call one that is yong puerum.

Pars is that wherby the whole is supported, it is either pars diuisa, or pars indiuisa, this di­uision wil hold both in nature & Law: In na­ture that id a diuided part, which consisteth of diuerse parcels: as the wing of a bird, or the clouen hoofe of a beast, or the finne of a fish are said to be parts diuided: In law there is also a diuided part, as the third part wherof a woman is indowed after the death of her husbād, & after the assignment made, and the third part of the [Page] land of the tenant in Capite, which the king hath after his death: Likewise the partes of a manor diuided by parceners: A part vndiuided is manifest to the vnderstanding & to the eye: to the vnderstanding, as the moitie or third part of iointenants, parceners, tenāts in com­mon, before particion: to the eye, as the vn­clouen hoofe of a beast, or the partes of the earth cleauing contumately together.

R.

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

S.

Sequestratio is either a seperation, by way of compounding, or by interdiction of possessi­on: It is voluntaria, or necessaria, Voluntaria, when it is done by the consent of the parties, Necessaria, whe [...] it is done by one that hath a competent aucthoritie to sequester.

Sylua caedua, which being cut may grow againe.

T.

Tugurium, quasi [...]egurium, it is taken of some for euery countrie house, but not rightly, [Page 81] for the house which doth consist of walles and tiles or bricke is no cotage, but a cotage is that which doth principally consist of reedes or thatch or soddes, earth and twigs layed to­gether, and compacted by clay or slime, or which hath in it a very small deale of tim­ber.

Tumultus is taken for euery perilous com­motion, if it be publiquely and hastely done.

Turba, a multitude, consisting at the least of the number of tenne.

V.

Vacillaus testis, which doth giue an incon­stant and diuerse testimonie.

Vagabundus, which hath neither certaine house, nor stedfast habitation, a man, as one tearmeth him, sine re, sine spe, sine fide, sine sede.

Vel, a particle, it doth not alwayes dis­ioyne, but sometimes explane.

Vis force or violence: it is of diuers sorts, vis detractiua, when a man taketh a thing from one against his will: vis compulsiua, when I compell a man to assent to a certaine acte, vis diuina, commonly called vis maior, whereof there is no resistance: vis expulsiua, which is done with weapon, and it is called of some vis armata, vis inquietatiua, when I [Page] am disseised by force, vis imminens the striking or assault of a man. Vis is not verbis, but facto, for he is not said vim pati, which is onely tou­ched by wordes.

Vniuersale quod ad vniuersos pertinet.

What methode is to be vsed in handling and disposing matters of Law.
The ninth Chapter.

OF methode it were better to write nothing then little, for so many diuerse methodes are proposed by many diuers authors, that plen­tie breedeth scarsity, and a man can harde­lye tell which to choose. Curiositie as in all other thinges it is vaine, so in methode it is necessarie. For to proceede without equalitie of tenor is negligence, and to obserue methode vnartificially is ignorance. They that giue a reason of the beginning, continuance, and en­ding of their tractats and discourses, are with­out doubte the most iudiciall and most plausi­ble methodistes: or they which so temper and moderate the course of matters, that though [Page 82] they render not a precise reason of their doe­ings: yet it is apparant to the reason and vn­derstanding of others. A twofolde methode is verie much talked of, and that is by procee­ding either a singularibus ad vniuersalia or ab vniuersalibus ad singularia, the one of these I accompt no methode at all, howsoeuer it hath vsurped the name, being but a natural discer­ning of thinges done in facto by the ordinary direction of the senses, and making thereof a generall conclusion, which is easie and fa­miliar to euery mans capacitie, so that the praise of that action is diligence and not art, for is it any difficult thing to reason and con­clude, wood is heauie, stone is heauie, iron is heauie, & sic in caeteris: therefore all thinges made of earth are heauie? how pro [...]e and rea­die is the perceauing of these particulars to euerie mans sense? and how easilie may the conclusion be framed by his vnderstanding? but in deede the discoursing from vniuersalles to particulars is more hard, more artificiall, more compendious, for it is done in lesse com­passe and fewer wordes, which is a great argument of a good methode, and therefore I doe not agree to Aristotle that Athenian Doctor, when hee saieth, Ars tum exi­stit, cum ex multis experientiae notionibus vna [...] quae ad vniuersum genus accommodetur nasci­tur praeceptio. Me [...]aphys. 1▪ c. 1. Vnlesse hee meane it of [Page] vulgar and mechanicall trades and occupa­tions, whereof onely I admit it to be true, but I rather approoue that which he saith, and doth likewise: progrediendum est ab vni­uersalibus ad singularia. Physicor. 1. c. 1. But there be some which will not allow any discourse but that which is furnished with mathematicall and demonstratiue reasons. Some would haue euery thing handled by examples, as Ramus, a man happier in writing, then in reproo­uing one that writ better then hee: who in handling Logicall places, doth illustrate them with many examples, but with neuer a rule. What manner of teaching is this, to shewe vnto thee that others did thus: but not to shewe why they did so: which default is for want of rules, in which the reason and knowledge of doing thinges aright is con­teyned. A man cannot make a shooe by a number of lastes, but hee must haue instruc­tion of one that is skilfull in the trade. Some againe will haue euery thing confirmed by the authorities and testimonies of them that be learned, thinking that onely to be the fit way of teaching. But the certaine and ne­cessarie reasons of the Mathematikes, are not in all artes to be required.Arist. Meta­phys. 1. part. poster. c. 3. Neyther is there an [...] or accurate kinde of handling things in all sciences alike to be vsed and obserued: but in euery science things are so to be ordred [Page 83] and digested, as the subiect or matter doth require where about it is employed, and so farre forth as may be agreeable to the profes­sion of the science. For a Geometrician and a Carpenter doe diuersly handle and vse a right line, the one, as it may be profitable to his worke which he carueth, the other sear­cheth what kinde of thing it is, and of what nature and so other sciences must be ruled by the subiect which they contemplate, least there be more [...] then [...] in them: ney­ther is a cause or reason to be exacted in all things, for of many it is sufficient to haue this knowledge quòd ita sunt, though we cannot know propter quod ita sunt, as of principles which are the first and highest rules in artes and sciences, and therefore no reason can be yeelded, because they are prima, the very first in the discourse of reason, and therefore [...] for thēselues to be beleeued▪ Surely Methode is so conuenient a thing in the studie of the lawe, that without it neither can the vnder­standing be well taught, nor the memorie well directed. It is not enough to haue a great heape of things that are to be read, vn­lesse the vse or order and manner of reading them [...]e well vnderstoode: and as in things that [...]e fit for banquets, tho [...]gh there be great varietie of sweete meates, yet there is no­thing more vnpleasant or vnholsome if they [Page] be mingled together, so the Student must haue a care least the order of his reading be confounded, least the last things be handled in the first place, and these thinges which should be in the middest be put in the last place, whiche whosoeuer doe, they cannot onely not comprehende the thinges which they studie, but vtterly debilitate and wea­ken the strength of the memorie: therefore it is good for Students to vse an artificiall Analysis, or resolution of things, into their principles, which may teach to deuide the whole into his partes, and to subdeuide partes into parcells, and in the end to make a con­sent and coherence of the entire thing and his partes: for though the skilfull partition of things be profitable and pleasant for the memorie, yet the Synthesis, that is the apt composition, coordination, and mutuall de­pendance of them doth more satisfie the vn­derstanding. Polyb. lib. 1. histor. Therefore Polybius a iudicious aucthor saith well, that they which thinke by the knowledge of particulars dispersed to at­taine to the full and perfit knowledge of the entire thing, doe no lesse erre, then hee who viewing the partes of a handsome and comely body seuerally and apart, doth therefore ima­gin that hee knoweth the whole feature and portraicture of the same man, who if hee had beheld these parts ioyned together, and com­pacted, [Page 84] and moued by the spirit of life, would haue iudged farre otherwise. For though a man may haue a confused notion, or conceite of the whole, by viewing the seperate and dis­ioyned partes, yet it is not possible that hee should haue certaine knowledge of the same, no more then a man by seeing perticular Mappes of Cities, may certainely perceiue the figure, situation, and order of the whole world. But he that can easily resolue things, may easily compound: for when he knoweth the particular sense and vse of the thinges resolued, hee may easily gather a generall knowledge of the whole thing, that is, a generall knowledge of manye particulars, whiche make one entire thing. The forme of this Analysis following, whiche is of Maister Littleton his two Chapiters of fee simple, and fee taile, I doe offer to the Student, as a thing to be considered of, be­cause it is incident to this purpose, which though it gaine not his good liking, yet if it minister but occasion vnto him to aduenture vpon the conueyance of some other Analysis, that may receiue the generall approbation, and iust applause of the learned, I shall thinke my labour herein well bestowed, and woulde gladlye reape profit by other mens presi­dents.

The Analysis of Littletons Chapiter of Fee simple.
  • Tenure in fee simple may bee considered
    • By the defi­nition
      • Inuented.
        • Fee simple is as much to say, as a lawfull and pure inheritance.
      • Expounded.
        • He that will purchase lands in fee simple must haue these wordes in his purchase, (To haue and to hold to him and to his heires, for these words his heires make the estate of inheritance, and he that lacketh this word (heires) and hath to haue and to hold to him and to his assignes for euer, hath estate but for terme of life.
    • By the tenant in fee simple who is after two sorts to be considered.
      • Generally.
        • Tenant in fee simple, is he which hath landes or teneme [...]s to hold to him and to his heires for euer.
      • Particularly.
        • By purchase as when a man both lands and t [...]ements by his deede, or by his agree­ment, to the possession of which he commeth not, by title of discent from none of his auncestors, or his [...]osins, but by his owne act.
        • By discent who may be thus described.
          • He that is tenant in fee simple must be of the whole bloud w [...] may bee proued by two ex­amples.
            • 1 If a man haue issue two Sonnes by two venters, and the elder purchaseth lands in fee simple, and dieth without issue, the yonger brother shall not haue the land, but the vncle of the elder brother, or some other his [...]ye cosins shall haue it, for yt the yonger is but of the halfe bloud to the elder brother.
            • 2. If a man haue a Sonne and daughter by one venter, & a Sonne by an other venter, and the sonne by the first venter▪ purchaseth lands in fee simple, and dieth without issue, the si­ster shall haue the land by discent as heire vnto her brother, for that the sister is of the whole bloud to the elder brother.
    • By the proper­ties of fee sim­ple.
      • 1 Inheritance in fee simple may lineal­lie discend but not lineally ascende which may be illustrated by sixe prerogatiues.
        • 1 By the vncles prerogatiue
          • If the fathers sonne purchase land in fee simple, the vncle shal haue the land as heire vnto the sonne, and not the father, because it cannot lineally ascende.
        • 2 By the fa­thers prero­gatiue which is threefold.
          • 1 If the foresaid vncle dye without issue, the Father liuing, the Father shall haue the land as heire vnto the vncle, and not vnto the sonne, for that he commeth to the land by collaterall discent, and not by lineal ascention.
          • 2 If landes discend by the Fathers side, the Fathers side shall inherite, and none of the Mothers side.
          • 3 If the sonne die without issue, and haue purchased lands in fee simple they of the bloud of the fathers side shall be heire vnto him before any of the mothers side.
        • 3. By the mo­thers prero­gatiue which is twofold.
          • 1 If the sonne hauing purchased lands in fee simple haue no heires on the fathers side, then shall the land discend vnto the heire on the mothers side.
          • 2 If a man take a wife inheritrix in fee simple, which hath issue a sonne and then dieth, and the sonne entreth into the tenements as sonne and heire to his mother, and after dieth without issue, the heires of the mothers side ought to inherite the tenementes, and not the heires of the fathers side.
        • 4 By the bro­thers prero­gatiue which is after two sorts.
          • 1 If there be three brethren, and the middle or yonger brother purchase land and dye without issue, the elder brother shall haue the land by dis­cent, for that he is more worthie of bloud.
          • 2 If there be two brethren by diuers venters, and the elder is seised in fee simple and dyeth without issue and his vncle entreth as heire vnto him which also dyeth without issue the yonger sonne shall inherite the tene­mentes as heire to the vncle, because hee is of the whole bloud to his vncle.
        • 5 By the Si­sters prero­gatiue.
          • If a man be seised of land in fee simple, which hath issue a sonne and a daughter by one venter, and a sonne by an other venter, and dieth: and the elder sonne entreth, and dyeth without issue, the daughter shall haue the land, and not the yonger sonne, but if the elder brother die before entrye be made, then the yonger brother shall haue the land. Qui a possessio fratris defe [...]do simplici facit sororem esse heredem.
        • 6 By the pre­rogatiue of the whole kindred.
          • If a man purchase land in fee simple and dye without issue, euery one that is his next cousin collateral for default of issue may inherite.
      • 2 Of such thinges whereof a man may haue a manu­all occupation, pos­session or receite as of lands, tene­mēts, rents, or such other, a man shall say in his pleading & in way of barre, that one such was seised in his de­mesne as of fee, but of such things that lye not in manual occupation, as of an aduowson of a church, or such maner of things, there he shal say, that he was seised as of fee and not in his de­mesne as of fee.
      • 3 Fee simple is the largest & greatest inheritance that a man can haue.
      • 4 For default of lawful heires the lord shal haue the land held in fee simple by eschete.

Obseruations vpon the Analysis.

A. THis definition, which Maister Littleton vseth, soundeth like a good Logicall definition, as con­sisting of the true genus, and the proper difference: for this word (inheritance) is the genus, which extendeth as well to fee simple, as to fee taile, and this word (pure) is a difference, whereby it is distinguished from fee taile: for fee simple is a pure inheritance, that is without limitation or restreint, but fee taile is a limitted or a restreigned inhe­ritance. This word (lawfull) in the definition is not idle: but the meaning of it is, that it is an inheritance according to the meaning of common lawe, for if by (lawfull) should be meant rightfull, then a fee simple by diseisin should be excluded, which I thinke was not Maister Littletons intent. And againe, if this worde (lawfull) shoulde extend to all lawes, inheritance should be heere taken according to the interpretation of other lawes also, [Page 86] which cannot be. Maister Littleton well be­ginneth with the definition, for there are but foure things to be doubted of, first, whether a thing be in rerum natura, secondly, what it is, and of what nature, thirdly, whether it be such and so qualified or no, fourthly, why it is such, and so qualified: and he that wel openeth these foure points▪ shall in all learned dis­courses shewe hymselfe excellent and abso­lute.

B.The nature of fee simple may bee some­what vnderstoode by applying it to the sub­iect to which it apperteineth, for tenant in fee simple, and tenure in fee simple, beeing coniugata, hee that well knoweth the one, must of necessitie well vnderstand the o­ther.

C.Maister Littleton lastly describeth estate in fee simple by certaine adiuncts or properties which do greatly serue to illustrate, and ex­plaine the things whereof wee intreate: they are of two sortes, externall and internall. Internall are they whiche flowe from the nature of the thing it selfe: of such sorte are the first and third properties mentioned in the Analysis, for in that fee simple may li­neally discende, and not lineally ascende, the nature of the tenure is the onely cause, for it beeyng to a man and so hys heyres, [Page] the more worthie heire is he that is of the bodie, the lesse worthie he that is of the bloud and not of the bodie, but the father in regard of the sonne can be neither of these but in re­gard and by mediation of the vncle he may be heire to the sonne, because he is of the vncles bloud, so that in the direct line it is euident, that the fee simple cannot ascend: and it is a very essential propertie to fee simple to be the largest and greatest inheritance, be­cause it is to a man and his heires without li­mitation. Externall properties are these; which do so go before a thing, or so follow it; or so cleaue to it, that notwithstanding there is no necessitie of any of these: as for example, before the killing of a man, commonly there is some brawling and contention of words▪ With the acte doth concurre the sighing or groaning of him that is slaine, and the flight, feare, lurking, trembling, and vnconstant an­swere of him that did kill him do follow the acte, howbeit some be slaine, without the con­currence of these circumstances. There be two sortes of adiunctes, some belonging to the person, some to the thing it selfe, to the person as the kinred, countrey, se [...]e, age, edu­cation, the habit of the bodie, the fortune, the estate, the qualities of his minde, the manner of his life. The adiuncts of the thing are the [Page 87] causes, the place, the time, the manner of doing a thing, and such like. Of these, some be common, and some be proper: common, as if one should commend Achilles, because he was of good birth, because he was a great captaine, because he was in fight against the Troians, for euery of whiche, Diomedes is as much to be commended as Achilles. Pro­per adiuncts be, as if thou shouldest commend Achilles for his great valor in killing Hector the stoutest of the Troians, and for his good fortune in killing Cygnus, who being inuul­nerable, did barre all the Gretians from com­ming downe the wall, and because beeing young, and not bound by any othe or leage­ance, he fought so valiantly for the Gretians. These two later of the proper adiuncts, I call externall, as not flowing from the es­sence of a thing, but befalling externally to it when it is in esse. Of this kinde there are two in the Analysis, the seconde and fourth.

The Analysis of Littletons Chapiter of Fee taile.

  • Fee taile may be di­uers waies considered
    • By the first ori­ginall.
      • Tenant in fee taile is by force of the statute W. 2. cap. 1. for at the common Law before the said statute, all inheritances were fee simple.
    • A By the defini­tion.
      • Inuented.
        • Feodum taliatum est haereditas in quadam certitudine limitata.
      • Expounded after ij. sorts.
        • 1 If tenant in taile die without issue, the donor or his heires shall inherite as in their reuersi­on, for in euery gift in the taile the reuersion of the fee simple is in the donor.
        • 2 If a man giue lands or tenements to an other to haue and to hold to him and to his heires males or females, he to whom such gift is made hath fee simple, for that it is not limitted by the gift of what bodie the issue male or female shall be.
    • By the diuerse kindes thereof
      • In res­pect of the na­ture of the en­taile.
        • Taile general which is to be conside­red by the
          • Defini­tion.
            • Inuen­ted.
              • Taile general is where landes be giuen to one and to the heires of his bodie begotten.
            • Expounded.
              • Therefore it is called generall taile, because whatsouer woman the tenant taketh to wife, if he haue many wiues, & by each of thē haue issue, yet any of these issues by possibility may inherite the te­nements by force of the said gift, because that euery such issue is of his body ingendred. So if lands be giuen to a woman, and to the heires of her body, howbeit that she haue many husbands, yet the issue that she hath by each husband may inherite.
          • By an example or speciall kinde thereof
            • If tenements be giuen to a man and to his wife, & to the heires of the body of the man ingendred, in this case the husband hath es­tate in the general taile, & the wife estate but for terme of life.
        • Taile speciall which is to be exami­ned ac­cording to the
          • Defini­tion.
            • Inuen­ted.
              • Tenant in taile special is where lands & tenements be giuen to a man and his wife (iointly or seuerally) & to the heires of their two bodies begotten.
            • Expoū ­ded af­ter two sorts.
              • 1 In such case none may enherite by force of such gift, but those which be engendred betweene them two, & it is called special taile: for that if the wife die and he take an other wife, and hath issu, the issue of the second wife shal neuer inherite by force of such gift, nor also the issue of the second husband if the first die.
              • 2 In the same maner it is where lands & tenements be giuen by a man vnto another with a wife, which is the daughter or cousin to the giuer in frankmariage, which gift hath inheritance by this word (Frankma [...]) vnto it annexed, howbeit they be not expressely said nor rehearsed in the gift, that is to say, that these donees shall haue [Page] these lands or tenements to them & to their [...] betweene them two ingengred, & this is called special tail, because the issue of the se­cond wife may not inherit, & the woman donee in frankma [...] must be of kin to the donor, & they shal do no seruice but feal it, till the 4. degree to be accompted from the donor be past.
          • Diuerse kindes thereof.
            • 1 If lands be giuen to the husband and to the wife, and to the heires of the husband which he begetteth of the body of ye wife, in this case the husbād hath estate in special taile, and the wife but for terme of life.
            • 2 If the gift be made to the husband and to the wife, and to the heires of the wife of her body by the husband ingendred, the wife hath estate in special taile, & the husband but for terme of life.
            • 3 If lands be giuen to the husband & the wife, and to the heires which the husband hath by his wife in this case, both haue estate in taile special, for that this word (heires) is not limited more to the one then to the other.
            • 4 If lands begiuen to a mau & his heirs wt he engēdreth on the body of his wife in this case ye husbād hath estate in the tail special, & ye wife nothing at al.
      • In res­pect of the per­sons to whom the taile belon­geth.
        • Taile to the heire male which is two fold.
          • 1. If landes be giuen to a man & his heires males of his body ingendred, in such case his heire male shall inherite, but his issue female shal neuer inherite.
          • 2 If lands be giuen to a man & to his heires males of his body engendred, & he hath issu ij. sonnes & deceaseth, and the elder sonne entreth as heire male, and hath issue a daughter and deceaseth, his brother shall haue the land and not the daugh­ter, for that the brother is heire male.
        • Taile to the heire female wt is to bee cōsidered by ye definition.
          • Taile to the heire female, is where lands be giuen to a man & to his heires females of his body ingendred, in this case his issue female shall inherite by force and forme of the said gift, and not the issue male, for that in such cases where the gift is, who ought to inherite, and who not, the will of the donor shall be obserued.
    • By the proper­ties.
      • 1 Whosoeuer shal inherite by force of a gift in the taile made vnto ye heires males it behoueth him to cōuey his discent by ye males wt may be illustrated by 2. exāples.
        • 1 If lands be giuen to a man and to his heires males of his body ingendred, and he hath issue a daughter, who hath issue a sonne, and deceaseth, in this case the sonne of the daughter shall not inherite by force of the taile, but in such case the donor shall enter.
        • 2 If lands be giuen to a man and his wife, and to the heires males of their two bodies begotten, and they haue issue after the like sort, the like shall happen.
      • 2 The death of a man taketh not away the estate of those that be in the tail, as if a man haue issue a sonne & deceaseth, and land is giuen to the sonne, and to the heires of the body of his father ingendred, this is a good tail, and yet the father was dead at the time of the gift.
      • 3 The donees and their issue shall hold of the donor and his heires as he holdeth of the Lord Paramount.

Obseruations vpon the Analysis.

THis definition, which Maister Littleton maketh of estate taile, consisteth likewise of genus, and of a difference. The genus is hae­reditas, which is common both to it and to fee simple: the difference in quadam certitu­dine limitata, by which it is distinguished from fee simple, for that is non limitata & sine cer­titudine, and by this definition a man may know what a fee simple is, and by the defini­tion of fee simple what fee taile is, so that the rules of arte are well obserued, which are that Rectum est iudex sui obliqui, and opposita iuxta se posita magis illucescunt.

Though the diuision or tenure of estate taile doth in the Table precedent consist of two members, or two differences, yet the especiall taile is deuided into more partes: and that manner of deuiding is not contrary to the rules of methode, for it is too much curiositie to exact in euery diuision two onely opposed essentiall differences, and two distinct kindes. [Page 89] There be three causes wherefore a diuision cannot be made by two differences. First be­cause of noe kind of thing, both the essential differences cannot certainly bee knowen, but the one of them wee doe expresse by a nega­tiue. Secondly, because that difference which wee set downe in the affirmatiue is not al­way the true difference. Thirdly, because the diuerse nature of diuerse immediate kindes of one thing wil not alwaies permit a twofold diuision, for though the diuision of Animal in hominem & brutum bee bimembris and accor­ding to rigorous exaction, yet sithe there be many kindes of brutish creatures, some that swimme, some that flye, some that goe, some that creepe, and the particulars of these kindes doe differ in the quintessence of their nature, surely to comprehend all these distinct thinges vnder two differences is not to be required, because it is either impossible, or a thing of exceeding difficultie. But when things are to be handled by way of disputa­tion, as the arguing of cases which is of great vse in the lawe, another methode and course must be vsed then hath bene taken in the fra­ming of this Analysis, for there the princi­pall case must be fully set downe, the points of [...]awe orderly distinguished, the reasons on the one part must be first set downe, with an­sweres annexed vnto them, then the reasons [Page] on the other part, with answeres likewise in their due places: and lastly, the conclusion of the whole controuersie debated, whether it were by iudgement, adiournement, or by the concord of the parties, or by other speciall meane, and for better direction herein (I am desirous to profit others if I could) I haue set downe an homely paterne according to the plaines of my conceit, in the disposing and ordering of a case, famous in our yeare bookes, and of great weight and vse, being the Prior of Mertons case, being very often at large argued, namely, in the eightenth, ninetenth, twentith, and twentie one yeares of the raigne of King Edward the fourth at seuerall times, and was likewise touched the second yeare of Richard the third, and all the contents of the arguments vpon this case de­liuered, as many as did concerne the princi­pall points then in question (for by matters are to be reposed in a seuerall place by them­selues) I haue brought into the compasse of a fewe lines, if you respect the large leafes wherein they are handled.

Le case enter le Prior de Merton plaintife, & le Prior de Bingham defendant.

EN le. 3. an de H. le. 3.Scir. faci. 18. E. 4. 22. 19. E. 4. 2. 47. 20. E. 4. 16. 21. E. 4. 60. 2. R. 3. 5. vn fine fuit leuie pa­renter le Prior de Merton pl. et le Prior de Bingham deforceant sur vn briefe de couent, que fuit en ceux parolls: cest le finall concorde parēter le Prior de Merton queren­tem et le Prior de Bingham deforceantem de 5. Markes, et v. s̄. rent cū pertinentiis en S. et R. sur que vn brief de couenant fuit sum̄on enter eux que fuit que lauantdit Prior de Bingham acknowledge et grante pur luy et ses successors que touts iours, apres ils payer chescun an al esglise de Merton pur les tene­mēts queux il tient del dit prior et pur les te­nemēts queux W. de W. ascun foits tient del dit Prior en les villages auantdits cinque markes, et v. s̄. a deux termes dans, pur touts suites et seruices, et que il ferroit a le chiefe seign̄or del fee pur lauantdit Prior de M. et ses successors touts seruices queux apperteig­nont a les dits tenemēts: et pur cest graunt le dit Prior de M. grant pur luy, et ses succes­sors, que ils violent garrant̄ al auantdit Prior de Bingham et ses successors touts lauantdits tenements pur les auantdits seruices contra [Page] omnes gentes: sur que vient en le courte vn I. Prior de Merton et prya scire faci. enuers W. Prior de Bingham dauer execution dar­rerages del dit rent, que fuerōt due en les ans darrein passe, et il auoit: et fuit returne &c. a quel iour le Prior de Bingham vient eins, et dit que le fine prooue le rente grant a le predecessors del pl. destre vn rent seruice on a [...]une auter rent issuant hors de terre et ne­my vn annuitie, per que entant que il auoit acknowledge, que cest rent fuit execute, il doit auer vn Assise ou Distres, et nemy vn brief que est en nature de briefe dannuitie▪ et sur cest ils demurront.

Les quaestions de ley.

  • 1. Si le fine fuit bien leuie.
  • 2. Si le rent soit vn annuitie.
1. Negat. Que le fine ne fuit bien leuie.
Littleton.

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

Brian.

Ceo ne besoigne.B. Car si ieo auoy in Islington 20. li. rent issuant de terres de twentie homes per seuerall grauntes,Responsum. si ieo graunt per fine a vous 20. li. rent hors de lour terres ou tene­ments in Islington vous naueres 20. li. rent queur ieo auoy in Islington mes vous aueres vn nouell rent: mes est diuersitie ou le chose de que le fine est destre leuie gist en demesne, et ou nemy. Car lou gist en demesne, la doit estre in esse al temps del fine leuie, come si ies leuie fine de mon terre en dale lou ieo nauera ascun terre en dale, cest fine est voide, mes de chose que poit issuer hors de terre vn fine poit estre leuie, coment que ne soit in rerum natura, come de rent ou common in dale, ou en fait il nauoit ascun common ou rent in dale al temps &c. mes sil auoit common in grosse en [...] le ville, et graunt a moy vn common, et ne monstra quel common, ceo serra construe le common que il auoit en [...] le ville.

Neale.

Cest fine est leuie de vn mere annuitie,C. et pur ceo est male,Ratio. 2. cont̄ si de chose naturallment surdant hors de terre come si ieo conust tout mon dr̄t en vn acre de terre auous et vous per [...] le fine graunt a moy vn annual rēt de 20. s̄. [Page] hors de [...] le terre, cest bon grant, vn [...] ne fuit ascun originall de ceo: per que &c.

Brian.

En auncient temps home puissoit auer conus vn fine sans originall,Respons. et sil soit leuie a cest iour il poit auer scire facias et si aduowso [...] discend al coparceners et ils ꝑ indenture en­rolle voilent agree de presenter ꝑ turne, ches­cun de eux quant son temps vient auera scire facias: per que &c.

Piggot.

En auncient temps fines fue [...] leuie deo et ecclesie, Replicat ad hoc respons. mes le ley estore alter: mes come ieo pensa chescun fine doit auer originall et de accorder a [...]. Car le note est placitum conuen­tionis, et en nostre case nest ascun couen̄ dun annuitie, mes dun rent solement, et si le origi­nall seit de 20. acres et le fine soit leuie de 40. acres quant al 20. le partie ser [...] discharge: car ne fuit ascun originall de eux, et en praecipe quod reddat le fine poit estre leuie del chose en demaunde, car le originall conteigne et con­cerne c̄. Issint si brief de couen̄ soit de 20 acres en dale et le fine est leuie, de 20 acres en sale le fine nest bon, ou si le originall soit de terre arable, et le counusans de pasture.

1. Affirmat'. Que le fine fuit bien leuie.D. Ratio 1.
Sulyarde.

Si en vn brief de couen̄ port dun mannor, le plaintif graunt le mannor al le deforceant, et graunt oustre a discharger le dit mannor en­uers le seignior del fee, cest bon fine, et vnc [...] le clause de discharging ne fuit en le briefe de couen̄, donques en cest case &c.

Sulyarde.

E. Ratio 2.Si en vn briefe de droit de customes et ser­uices le seignior poit releaser per fine tout son droit, que il ad en le terre, et le ten̄ poit graunt per [...] le fine 20. [...]. annualment, donques &c.

Catesby.R. 3.

Quant vn home acknowledge le droit de terre a vn et vn rēt est reserue sur le graunt et ren [...], ou vn common, ou tot carectae ligni de­stre prise del ter [...], cest bon, car ils sont con­teigne implicatiue, en le originall, mes si le fine est leuie dun chose nient expresse ne impli­de en le originall cest voide, donques en cest case, pur c̄ que le fine est dun rent seruice, car le fine est pro omnibus alijs seruitijs per cest ꝑoll (alijs) est implide, que le rent est aliquod▪ seruitium.

2. Negat. Que le rent en cest [...]ase nest vn annuitie.
Piggot.

Le fine est que le Prior de Merton pur les seruices auant dits acquite le Prior de Bing­ham de touts seruices enuers le seignour del fee,F. et pur ceo cest rent seruice et nemie rent secke.Ratio. 1.

Collowe.

Le rent est change per le fine,Respons. Car ambideur les parties serront estoppe de denyer lestate prise ꝑ le fine, come si home soit seise de terre en fee, et vn fine soit leuie perenter est [...] et luy, per que lestraunge acknowledge m̄ le terre a luy et a les heires de son corps ingendres, ore son estate est change, issint si home tient per seruice de chiualer, et le signior per fine ac­knowledge que il tient en soccage ore le te­nure est alter, et il tiendra en socage, et en cest case le rent ne poit estre rent seruice, car don­ques le partie poit distr sur le terre et ceo ne poit estre. Car touts suits quant al terre sont discharge per le fine: et ne poit estre rent charge. Car nul terre est charge oue distr: et rent secke ne poit estre: car donques il serra [Page 93] demaund sur le terre: et annuitie ne poit estre: Car le Priour ne poit charge lemeas [...].

Pigot.

Si le Prior ne B. [...]e poit extinguisher les seruices per ses parolles,G. on per [...]son act,Rat. 2. le [...]ent seruice continue, per q̄ &c.

Si home tient de moy per xx. s̄,H. et ies con­firme son estate de tener per vn denier pur touts maners de seruices,Rat. 3. il ferra fealtie, & cest rent est parcel del auncient rent, per que &c.

2. Affirmat'. Que le rent est vn annuitie.
Starkey.

Si vn home ne poit graunt al auter ceo ḡ il auoit deuant,I. donques le rent ḡ le Prior de Bingham graunt a le Prior de Merton ne poit estre launcient rent,Rat. 1. mes vn nouel rent ou vn annuitie, per que &c.

Si ieo teigne de vous per homage,Con [...]ir. ratio. fealtie, et [...]. s̄. rent, et ieo voile graunter a vous per fine xii. d. rent pur les tenements queux ieo teigne de vous, cest vn nouel rent, & nemy launcient rent, per que &c.

Vauisor.

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

Choke.

Si ceux parolx, que le Prior de Bingham ferra touts les seruices pur le Prior de Mer­ton,Rat. 3. ne prouant ceo destre rent seruice: Car si soient seignior et tenant, et le seignior release a le tenant per fait indent tout son droit que il auoit, reddendo vnum denarium, & faciendo capitali domino seruitia &c. en le behalfe del seignior [...]eux parolx sont voides, Car per le release son seigniorie est extinct, donques en cest case &c.

Iudgement.

Trois des Iustices agarderont ḡ le pl poit suer execution per Scire facias, et issint iudge­ment fuit enter▪ e [...]maintenant sedente curia, vn briefe Derror fuit mise eins. Et fuit touche en le bank del Roy 2. R. 3. mes nest la decids, ne argue.

Obseruations vpon the precedent forme of arguing.

A. The first reason made by Mast. Little­ton is drawen from the cause of the thing ge­nerally, and specially from the material cause: For if the onely material causes of fines be thinges which are in esse, it is a probable con­clusion to say that of this rent being not in esse, a fine could not be leuied. And as the rule of Logicke is, Quae eadem sunt eorum genera­tiones et corruptiones, causae constituentes et cor­rumpentes eaedem sunt: Arist. Top. 7. c. 1. So of such thinges which be the same in kind, the causes material are the same: and therfore the material causes of fines, that is the thing whereof they are leuied, ought to be the same.

B. The aunswere of Brian to Mast. Lit­tletons reason is by way of distinguishing, for euery aunswere must be either by direct gran­ting, or direct denying, or els by distingui­shing which is partly a granting partly a de­nying.

C. Mast. Neale his reason is drawen from the same place of Logicke, from which Mast. Littletons was deriued: for he supposeth that an Ammitie is no fit materiall cause whereof a fine may be leuied.

[Page] D. Sulyards reason is drawen à compara­tis patibus from thinges alike probable: For if a man in a writ of Couenant brought of a manor, may graunt and couenant to discharge the said mannor against the Lord of the fee, though in the writ of couenant there were no mentioning of any such discharge: by the like reason a man may leuie a fine of a thing which is not mentioned in the writ of couenant, and which was no [...] in Esse before. And this maner of reasoning is grounded vpon that rule in Logike, Si duo duobus aeque conueniant, & hoc huic conueniat, etiam illud illi conueniet. Arist. Top. 2 c. 4.

E. Sulyards second reason is drawen á si­mili: For like as in a fine leuied vpon a writ of Right brought of customes and seruices, the tenant may graunt a rent which was not in Esse before: so likewise in this case the fine might be leuied of a rent, which had no being before. And this consequens is warranted by this rule, Si in vno eorum quae similia sunt ali­quo modo se res habeat, eodem etiam modo in alijs se habebit. Arist. Top. 2 c. 4.

F. The first reason whereby Pigot goeth about to prooue that the rent is not an Annui­tie is deduced à genere: For if it be truely named by the generall name of seruice in the fine, it must be intended to be a speciall kind of rent seruice, and not a rent secke, according to the rule, Si aliquid sit genus, species ab e [...] [Page 95] comprehensa participabit natura eius, sed non natura eius quod est contrarium generi. h.

G. Pigot his second reason is drawen a comparatis paribus.

H. His third reason is drawen a simili.

I. Starkey his first reason is drawen a comparatis paribus.

K. The reasons vsed by Vauisour and Choke to prooue the rent to be an Annuitie are drawen a simili.

FINIS.

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